A 
A 

0  ! 
0  I 
0  I 

8  [ 
8  i 

4  I 

5  I 
4  = 
8  i 


iliii^ 


'iii|| 


:iiiiii 


if  :    : 


5 

} 

1. 

! 

I 

t 

ill 

1    ' 

i 

f 

1 

I 

UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


v-^ 


'^r^ 


\HmA\irO/ 


M-LIBKA! 


■OFCALIFO/?^ 


'^AaaAiNomv 


■/^AWHHn-i^' 


^^tiii)i-iArir(7/- 


^OJITV^J^' 


^OFCALIFO% 


\WEUN1VER^// 


'^^•AHVy9n-#'  <rjl30NV-S01^' 


W:-^  -r// 


^lOS-ANbLLrj^- 


'^HlAlNn 


•,;\V.  Liuju-ML  1  i,y/  -\\\ 


%0-]ITVl-^0' 


.VION-ANGF 


,^.v;)F-CAL!F0/?4 


THE 


MODERN  LAW  OF  CARRIERS; 


OR    THE 


LIMITATION    OF  THE  COMMON-LAW  LIABILITY 
OF   COMMON   CARRIERS 


UNDER 


TIIH   LAW  MERCHANT,  STATUTES  AND 
SPECIAL  CONTRACTS. 


By    EVEEETT    P.   WHEELER, 

OF   THE   NEW   YORK   BAR. 


NEW   YORK: 

BAKER,    VOORHIS    &    CO.,    LAW    PUBLISHERS, 

66    NASSAU     STREET. 

1890. 


Copyright,  1890, 
By  EVERETT  T.  WHEELER. 


mo 


"Willis  McDonald  &  Co.,  Prtnters, 
3S-43  Gold  Street,  N.  Y. 


PREFACE. 


The  liability  of  common  carriers  at  common  law  has  been  settled  by 
a  series  of  decisions,  and  is  accurately  stated  in  numerous  text-books. 
But  in  my  professional  experience  I  have  found  no  text-book  which 
fully  considered  the  limitations  placed  upon  such  liability  by  the  law 
merchant,  by  statutes  and  by  special  contract.  To  supply  this  defi- 
ciency I  have  prepared  the  present  volume,  I  have  for  thirteen  years 
devoted  to  it  such  time  as  I  could  take  from  the  labors  of  an  engross- 
ing profession,  and  I  trust  it  will  be  useful  to  my  brethren  of  the  bar. 

The  first  part  of  the  book  is  devoted  to  the  rights  and  obligations  of 
maritime  carriers ;  the  second  is  more  general,  and  applies  to  carriers 
both  by  land  and  sea. 

I  have  been  aided  in  the  collation  of  cases  by  several  gentlemen  of 
the  bar,  and  especially  by  Mr.  Wyllys  Hodges,  Mr.  Ferdinand  Shack 
and  Mr.  Seth  S.  Terry.  Mr.  Hodges  and  Mr.  Terry  have  assisted  to 
prepare  the  index.     I  am  glad  to  tender  to  them  all  my  sincere  thanks. 

Everett  P.  Wheeler. 


New  York,  January  24,  1890. 


740120 


TABLE  OF  CONTENTS. 


PART  FIRST. 

LIMITATIONS  UPON  THE  LIABILITY  OF  COMMON  CAR- 
RIERS BY  THE  LAW  MERCHANT,  AS  ADOPTED  IN 
THE  UNITED  STATES. 

CHAPTER  I. 

PAGE 

THE      ADOPTION      OF      THE      LAW      MERCHANT     IN     THE 

UNITED     STATES I 

CHAPTER  II. 

THE  UNITED    STATES    STATUTE 21 

CHAPTER  HI. 

PROCEDURE    UNDER    UNITED    STATES    STATUTE 52 


PART  SECOND. 

LIMITATION  OF  LIABILITY  BY  CONTRACT. 

CHAPTER  IV. 

THE  RIGHT  OF  THE  CARRIER  TO  LIMIT  HIS  LIABILITY 
BY  CONTRACT,  AND  BY  RULES  AND  REGULATIONS 
OF    HIS    OWN,    AS  AFFECTED    BY    PUBLIC    POLICY...        75 

Sec.  I.     Personal  negligence.     Defective  equipment 77 

Sec.  2.     Lawfulness  of  contract  for  exemption  from  liability  for 

negligence  of  the  carrier's  servants 82 


VI  TABLE  OF  CONTENTS. 

PAGE 

Sec  3.     Live  stock  contracts.     Intrinsic  defects  ;  and  perishable 

property,  or  property  involving  special  risk 97 

Sec.  4.  The  carrier's  liability  as  affected  by  the  question  of  con- 
sideration      106 

CHAPTER  V. 

LIMITATIONS    AS    TO    AMOUNT    OF    LIABILITY II4 

CHAPTER  VI. 

TIME    AND    MANNER    OF    PRESENTING    CLAIMS 1 23 

CHAPTER  VII. 

.THE     carrier's     RIGHT     TO    MAKE    REASONABLE    RULES 

AND    REGULATIONS 1 3O 

Sec.  I.     Procuring  tickets  before  entering  the  cars 132 

Sec  2.     Requiring  tickets  to  be  shown  and  surrendered 139 

Sec.  3.     Limiting  the  time  of  validity  of  ticket 142 

Sec  4.     Regulating  or  limiting  the  trip  upon  which  a  ticket  can  be 

used 145 

Sec  5.     Tickets  not  transferable 149 

Sec  6.  The  right  to  designate  the  character  of  the  cars  or  other 
accommodations  provided,  and  the  persons  who  shall 
travel  upon  or  use  the  same.     The  passenger's  right 

to  a  seat 151 

Sec  7.     Rules  and  regulations  as  to  the  stations  at  which  trains 

shall  stop 159 

Sec  8.     Regulations  as  to  baggage  and  freight 161 

Sec  9.  Waiver  by  the  carrier.  The  passenger's  remedy  for  the 
violation  of  a  special  agreement  modifying  or  waiving 

the  carrier's  rules 163 

Sec  10.     Power  of  carrier  to  enforce  reasonable  rules 170 

Sec  II.     Whether  notice  of  the  rules  is  necessary;  and  if  so,  what  ?  177 

CHAPTER  VIII. 

CONFLICT    OF    LAWS 1 8 1 


TABLE   OF   CONTENTS.  VU 

CHAPTER  IX. 

PAGE 

CONTRIBUTORY  NEGLIGENCE  AND  FRAUD  OF  SHIPPER.  206 

CHAPTER  X. 

Sec.  I.     How  the  contract  of  limitation  may  be  made 221 

Sec.  2.     Requisite  evidence  of  the  shipper's  assent  to  the  contract  225 
Sec  3.     Construction  of  contracts  claimed  to  exempt  from  negli- 
gence      233 

CHAPTER  XL 

USAGE    OF     BUSINESS 239 

Sec.  I.     Effect  of   the  carrier's  usage,  with  especial  reference  to 

the  question  of  notice  to  the  shipper 239 

Sec.  2.     Usage  as   regulating  the  carrier's   mode   of   transacting 

business 244 

CHAPTER  XH. 

Sec.  I .  Burden  of  proof  of  the  contract 250 

Sec   2.  Burden  of  proof  of  negligence  and  loss 252 

Sec.  3.  What  will  be  treated  as  a  part  of  the  contract 26^ 

Sec.  4.  Admissibilit}-  of  parol  evidence 266 

CHAPTER  XHI. 

Sec.  I.     Time  when  contract  made,  as  affecting  its  consideration 

and  validity 270 

Sec  2.     Authority  shipping  agent 274 

Sec  3.     Contracts  with  connecting  lines 276 

CHAPTER  XIV. 

CONSTRUCTION    OF     PARTICULAR    CLAUSES    IN    BILLS    OF 

LADING 2SS 

Sec  I.     "  Received  in  good  order.'' 2S8 

Sec  2.     Limitations  relating  to  quantity,  character  or  quality 291 


Vlil  TABLE   OF   CONTENTS. 

PAGE 

Sec.  3.     The  Act  of  God,  perils  of  the  seas,  rivers,  etc.,  and  other 

causes  of  injury  occurring  without  human  intervention  296 
Sec.  4.     Public  enemy,  and  cases  of  "  wV  major^''  including  in  the 
latter   the  public  authorities,   strikes,  mobs,  pirates, 

robbers  and  thieves 311 

Sec.  5.     Loss  from  acts  of  master  and  mariners 319 

Sec  6.     Danger  of  fire 324 

Sec.  7.     Leakage,  breakage,  sweating,  rust,  shrinkage,  and  similar 

exceptions  in  the  bill  of  lading 326 

Sec.  8.     Delivery .' 330 

Sec  9.     Insurance 337 

Sec  10.  Reshipment • 342 

Sec  II.  The  Produce  Exchange  Bill  of  Lading 343 


INDEX .' 353 


TABLE  OF  CASES. 


For  the  sake  of  brevity,  the  abbreviation  R.  R.  is  used  herein   for  Railroad  Com- 
pany, and  R.  Co.  for  Railway  Company. 


Abbe  V.  Eaton,  266 
Abbie  C.  Stubbs,  The,  65 
Abbott,  Blodget  v.  269 

V.  National  S.  S.  Co  292 
Abby  Pratt,  The,  Montgomery  v.  290 
Abels,  Chicago,  &c.  R.  R.  Co.  v.  98, 

118,  258 
Aborn,  Loring  v.  141 
Adams,  Detroit  &  Milwaukee  R.  Co. 
V.  271 

Grace  v.  222 

Illinois  Central  R.  R.  Co.  v.  86 

V.  Nashville,  200 

Newstadt  v.  115,  252 

O'Connor  v.  81 
Adams  Exp.  Co.,  Bank  of  Kentucky  t/. 
83,  90,   III 

Bland  z/.  312 

Boscowitz  V.  83,  90,  121 

Brehme  z/.  115 

Brown  v.  231 

Buckland  v.  224,  232 

V.  Darnell,  244 

V.  Fendrick,  83 

Gait  V.  90 

Grogan  v.  85,  117,  118,  253 

V.  Guthrie,  250,  251 

V.  Harris,  117,  279 

V.  Haynes,  229 

V.  Holmes,  252 

Kirbyz/.  84.  254 

V.  Loeb,  26  r 

V.  Noch,  227 

Orndorff  7/.  84 

Pendergastt/.  224 

V.  Reagan,   124 

Schutter  v.  254 

Snider  v.  84,  222,  223 

V.  .Stettaners,  230,252,253,  261 

Van  Winkle  v.  120 

V.  Wilson,  284 
Adriatic,  The,  255,  260,  292,  295 
Aetna  Ins.  Co.  v.  Wheeler,  279 


African  Steamship  Co.  v.  Swanzy,  70 

Williams  v.  49 
Agnew  V.  St.  Contra  Costa,  98 
Aiery  v.  Merrill,  302 
Aiken,  Mo.  Pac.  Ry.  Co.  v.  \T] 
Ainsworth,  Pomeroy  v.  193 
Ala.    G.   S.  R.  R.  v.  Little,  117,  256, 
«       297 

V.  Mt.  Vernon  Co.  283 
Ala.  G.  S.  R.  R.  Co.  v.  Hawk,    155 

V.  Heddleston,  166,  167 

V.  Thomas,  280,  283 
Albany  &  Susq.  R.   R.,    Fink  v.  242 
Alden  v.  Pearson,  253 
Aldridge  v.  Gt.  Western  Railway  Co. 

276 
Alesia,  The,  299,  334 
Alexander  zi.  Greene,  234 
Alexandre,  Atlantic  Mut.  Ins.  Co.  v.  45 
Aline,  The,  118,  273,  299,  337 
Alknomac,  The,  320 
Alleghany  Valley  R.  R.,  Baker  v.  80 

O'Donnell  v.  154 
Allen,  Indianapolis  R.  R.  v.  83 

V.  Mackey,  62 

Sewall  V.  248 
Ailing  V.  Boston  &  Albany  R.  R.  240 

Sherlock  v.  51 
Allison  V.  Bristol  Marine  Ins.  Co.  61 

Galveston,  &c.  R.  Co.  v.  93 
Alpena,  The,  26,  42,  55 
Amende,  Keith  v.  290 
America,  The,  260 
Am.  Trans.  Co.  v.  Moore,  250,  251 

Moore  v.  23,  38 
American  Exp.  Co.,  Boorman  v.  115, 
121,  229 

V,  Christenson,  84 

Muser  v.  wj 

V.  Perkins,  104 

V.  Sands,  85,  252 

V.   Second   National  Bank,  90 
222,  253,  254 


X 


TABLE   OF   CASES. 


American  Exp.  Co.  v.  Spellman,   270 

Vroman  v.   120,  127 
American  Ins.  Co.  v.  Bryan.  318 
American  Merchants'  Union  E.xp.  Co. 
v.  Ketchum,  261 

V  Schier.  223 
Ames  V.  McCamber,  201 
Anderson,  Boyce  v.  98 

V.  Scholev.  215 

V.  Wasatch,  &c.  R.  R.  256 
Andover,  The,  293 
Andrews  z/.  Pond,  185,  186 

Jackson  v.  228 
Angle  V.  Mississippi  &  Mo.  R.  R.  Co. 

248.  253 
Anna  Maria,  The,  321 
Annas  7:  The  Milwaukee  &  N.  R  R. 

Co.  85,  92,  108 
Antoinetta,  The,  327 
Applewhite,  Ohio  &  Miss    R.  R.  Co. 

V.  159 
Arayo  v.  Currell,  189 
Arctic  Ins.  Co.  v.  Austin,  18 
Ardan  S.  S.  Co.  v.  Theband,  93,  266 
Arend  v.  Liverpool  S.  S.  Co.  253,  289 
Armijo,  Seligman  v.  2^3 
Armstead,  Southern  Exp.  Co.  v.  92. 

114 
Arnaudin  v.  Adm.  de  la  Marine,  34 
Arnold  v.  111.  Cent.  R.  R.  Co.  92,  154 

V.  Nat.  Steamship  Co.  247 

V.  Penn.    R.   R.  Co.   144,    172, 

173 
Arthur  v.  St.  Paul  &  D.  R.  Co.  333 
Artisans'  Bank,  Hotchkiss  v.  337 
Ashby,  Richmond,  &c.  R.  R.  v   160 
Ashland,    Bank   of,   Railroad   Co.    v. 

187 
Ashmead,  Illinois  Central  R.  R.  Co.  v. 

Ill 
Ashmore  v.  Penn.  Steam  Towing  & 

Trans.  Co.  87 
Association,  Fuller  v.  86 
Astor,  Aymar  v.  300 
Astrup  V.  Lewey,  300,  306 
Atchison  &  Topeka  R.  R.  Co.,  Avery 

^-    133 
V.  Brewer.  252 
V.  Gants,  178 
Kiff  z/.  281 
Paddock  v.  154 
V.  Roach,  173 

V  Weber.  154,  155,  173 
Weyand  v.  244,  337 

Atchison  &  Nebraska  R.  R.  v.  Wash- 
burn, 99 
Atkinson  v.  Gt.  Western  Ins.  Co.  323 
V.  Marks,  317 


Atlanta,  &c.  R.  R.  Co.,  Britton  v.  152, 
158 
V.  Tanner,  201 
Atlantic  &  P.  R.  R.,  Lupe  v.  84 
Atlantic  Mut.   Ins.  Co.  v.  Alexandre, 

45 
Atlantic  Ins.  Co.  v.  Storrow,  318,  339 
Atlantic,  The,  68 
Atlas,  The.  8,  18.44 
Atlas  Ins.  Co.,  Lapham  v.  246 
Atlas  S.  S.  Co.,  Spinelti  v.  87,  318,  320, 

323'  324 
Atwaler  7/.  Bartsch,  184 

V.     D.  L.    &  \V.  Railway  Co. 
177 
Atwell  V.  Miller,  60 
Atwood  7/.  Reliance  Trans,  Co.  299 
Auerbach  v.  N.  Y.  Central  R.  R.  Co. 

144 
Austin.  Arctic  Ins  Co.  v.  18 
Griggs  V  60 
z/.  Miller,  14 
V.  Manchester,  &c     R.   Co.  92, 

235 
Avant,  Central  R.   R.  v.  286 
Avery   v.   Atchison,  Topeka,  &c.  R. 

R-  133 

Aymar  v.  Astor,  300 

7'.  Sheldon,  187 
Avres,  Beebe  z/.  145,  178,  242 

V.    Chicago  &  N.    W.    R.    Co. 
105,  248,  257 

Morris  &  E.   R.  R.  v.  159,  332 

V.  Western  R.  R.  263 


Babcock  v.  Lake  Shore  &  Mich.  S.  R. 
Co.  277,  279,  284 
Jackson  v.  59 
People  v.  105 
Backman,  U.  S.  Express  Co.  v.  107, 

118,  235,  257 
Baker  v.  Alleghany  Valley  R.  R.  Co. 
80 
V.  Brinson.  257 
V.  Louisville  &    N.  R.    R.  Co. 

105 
V.  Steamboat  Milwaukee,  272 
Baldauf,  Camden  &  Amboy  R.  R.  Co. 

V.  85,  210,  231,  252 
Baldwm  z\  Collins,  206 

V.  Grand  Trunk  Ry.  Co.  172 
V.  Liverpool  &  G.  W.  S.  Co, 
115,  206 
Bales,  Wright  v.  64 
Balfour  v.  Wilkins,  240 
Ball  V.  Wabash,  Sec.  R.  103 
Ballou,  Camp  Point  Mfg.  Co.  v.  81 


TABLE  OF  CASES. 


XI 


Baltimore  &  O.  R.  R.  Co.  v.  Bambrey, 
169 

Bankarcl  v.  102,  109,  256,  260 

Bostwick  V.  270,  272,  273 

V.  Brady,  86,  231 

Canfield  v.  87,  234,   253,    255, 
262 

Friedenrich  7/.  150 

Hostetter  v.  267 

Kent  V.  164 

McCann  v.  284 

Maslin  v.  98,  106 

v.  Rathbone,  87,  234 

V.  Schumacher,  284 

State  z/.  85 

Owens  V.  86 
Baltimore  S.  S.  Co.,  Scott  v.  325 
Baltzell.  Naylor  v.  43 
Bamberg  v.  South  Carolina  R.  R.  98 
Bambrey,  Bait.  &  O.  R.  R.  Co.  v.  169 
Bancroft  v.    Merchants'    D.    T.    Co. 

284 
Bank  v.  Kennedy,  198 

of  Ashland,  Junction  R.  R.  Co. 
V.  185 

of  Augustas*.  Earle,  16,  182 

of  Kentucky  v.  Adams  Ex.  Co. 
83,  90,  III 
Bankard  v.  Bait.  &  O.  R.  R.  Co.  102, 

109,  256,  260 
Bannerrman,  Chicago  &  N.  W.  R.  R. 

V.  150 
Bansemer  v.  Toledo,  &c.  Ry.  Co.  331 
Barber  v.  Brace,  299 
Barclay  2/.  Gana,  317 
Barker  v.  Coflin,  142,  170,  231 

V.  Hodgson,  313 

V.  N.  Y.  Central  R.  R.  Co.  160 
Barley,  DeWitt  v.  347 
Barnes,    County   of    Leavenworth   v. 
200 

Wiltse  V.  243 

V.  Steamship  Co,  8 
Barnett,  Gaither  v.  303 
Barney  v.  Oyster  Bay  &  H.  Steamboat 
Co.  157 

V.  Prentiss,  232 
Barnwell,  Clark  v.  253,  255,  292 
Barracouta,  The,  255 
Barreda,  Lee  v.  60 
Barrett  v.  Rogers,  289 
Barrows.  U.  S.  v.  345 
Barry  v.  Ransom,  269 
Barter  z/.  Wheeler,  193.  284,  325 
Bartlett.  Penobscot  &  Kennebeck  R.  R. 
Co.  7/.  186 

V.  Pittsburgh,  &c.  R.  Co.  316 
Barton,  Teal  v.  2\% 


Bartram,    Cleveland,    Columbus,    &c- 

R.  R.  Co.  V.  138,  147,  153 
Bartsch  v.  Atwater.  184 
Bason,  Steamboat  Co.  v.  307 
Bass  V.  Chicago  &  N.  W.  R.  R.  Co. 

151,  158 
Bates  V.  Old  Colony  Railway  Co.  89, 

109 
Batson  t/.  Donovan,  114,  209 
Bauder,  Osgood  v.  185 
Baugh  V.  McDaniel,  285 
Baulec  v.  N.  Y.  &  Harlem  R.  R.  80 
Bausch,  Camden  &  A.  R.  R.  Co.  v. 

107,  110,  267 
Baxendale,  Berntein  v.  121 

V.  Great  E.  R.  Co.  115.  121 
Hart  V.  179 
Baxter  v.  Leland,  245,  297,  329 
Bay  State  S,  S.   Co.,   Nevins  v.  230^ 

241 
Baynes,  Hand  v.  93.236 
Bazin  v.  Richardson.  298,  299 

V.  Steamship  Co.  299 
Beale,  Mead  v.  14 
Bean  v.  Green,  233,  241 
Beard  v.  Conn.  &  Pass.  R.  R.   Co. 

78 
Bearse  v.  Ropes,  253 
Beauchamp  v.  International  &  G.  N. 

Ry.  Co.  160 
Beckford  v.  Wade,  16 
Bee,  The,  320 

Beebe  v.  Ayres,  145,  178,  242 
Beeson,  Mo,  Pas.  R.  Co.  v.  271 
Beggs,  Toledo,  Wabash,  &c.  R.  R.  v. 

150 
Belger  v.  Dinsmore,    115,    117,    226^ 

227,  228 
Belfast  V.  Boon,  317 
Belger  z/.  Dinsmore,  115,  117,  226,  227, 

228 
Belknap,  Camden,  &c.  Trans.  Co.  ■z/. 

233 
Bell  V.  Bruen,  185 

Devillers  v.  283 

V.  Packard,  196 

V.  Read,  80,  309 

Tevillers  v.  283 
Bellona,  The,  259 
Benefactor,  The,  67 
Benner  v.  Equitable  Safety  Ins.  Co.  61 
Bennett  Lake  Shore  Ry.  Co.  v.  315 

V.  Northern  Pacific  Ex.  Co.  129 
V.  Railroad  Co.  139 
Benson,   Memphis,  &c.  R.  R.  Co.  v, 

151,  159 
Benzing  v.  Steinway,  79 
Bergenseren,  The,  299 


Xll 


TA^BLE  OF  CASES. 


Berlin,  The,  West  v.  269,  288,  289,  290, 

309 
Bermuda,  The,  121 
Bernard,  Coggs  f.  317 
Bernstein  v.  Baxendale,  121 
Berry  v.  Cooper,  259 

Cooper  V.  241,  243 
Berry  et  al.    v.    Cooper  &   Boykins' 

Exrs.  83 
Betts  V,  Farmers'  Loan  &  T.  Co.  215 
Bevier  v.  Delaware  &  Hudson  Canal 

Co.  79 
Bigelow,  Georgia  S.  R.  R.  Co.  u.  144 
Bills,  Chicago,  St.  L.  &  P.  R.  R.  Co. 
V.  159,  173 

Ingalls  V.  78 

V.  N.  Y.  Central  R.  R.  102,  306 
Bindley,  Ryan  v.  64 
Bingham,  Harmony  v.  303,  309 
Birchard  et  al.^  Mann  et  al.  v.  87,  222 
Bird  V.  Cromwell,  307 
Bishop,  Western,  &c.  R.  Co.  v.  85 
Eissell  V.  Campbell,  295 

V.  N.  Y.  Central  R.  R.  86,  87, 
107,  109,  221 

V.  Price,  243,  266,  289 

V.  The  Michigan  So.  &  N.  Ind. 
R.  R.  182 
Bitterne,  The,  330 
Bjornsen,  Regina  v.  204 
Black  V.  Goodrich  Trans.  Co.  118, 120 
Black  Hawk,  The,  260 
Black  Warrior,  The,  289 
Blackstock  v,  Erie  R.  R.  Co.  316 
Blair  v.  Erie  R.  R.  Co.  113 
Blake,  Mahone  v.  214 
Blanchard  v.  N.  J.  Steamboat  Co.  64 

V.  W.  U.  Tel.  Co.  259 
Bland  v.  Adams  Exp.  Co.  312 

Robinson  v.  192 

V.  Soathern  Pacific  R.  R.  175 
Blauvelt,  Sheldon  v.  185 
Bliss,  Crum  v.  200 
Eliven  v.  Hudson  R.  R.  R.  316 

V.  N.  E.  Screw  Co.  199 
Bloch,  Merchants'  D.  &  T.  Co.  v.  85, 

90 
Block  V.  Merchants'  D.  &  T.  Trans. 

Co.  286 
Blodgett  V.  Abbott,  269 
Blood,  Schmidt  v.  260 
Bloomington    &   Western    R.    R.   v. 

Strain,  78 
Blossom  V.  Dodd,  225,  226 

V.  Griffin,  93 
Blumenthal  v,  Brainers,  233 

V.  Maine  Central  R.  R.  210 
Blyth,  Marsh  v.  301 


Board,  &c.,  Stewart  v.  59 

Boehm  v.  Combe,  322 

Boice  V.  Hudson    R.  R.  R.   Co.  143, 

144 
Bolles,    Merchants'    Despatch  Trans. 

Co.  V.  206,  279 
Bonanno  v.  The  Boskenna  Bay,  334 
Bond  V.  Frost,  266,  289 

Texas  &  P.  R.  R.  ?/.  175 
Bonner  v.  Merch.  St.  Co.  308 
Boon,  Belfast  v.  317 
Boorman  v.  American  Exp.  Co.  115, 

121,  229 
Booth  V.  Boston  &  Albany  R.  R.  80 
Bordeaux  v.  Erie  Railway  Co.  134 
Bork  V.  Norton,  309 
Boscowitz  V.  Adams  Exp.  Co.  83,  90, 

121 
Bosher,  Rockingham,  &c.  Ins.  Co.  v. 

338 
Boskenna  Bay,  The  334 

Bonanno  v.  334 
Boston  &  Albany  R.  R.,  Ailing  v.  240 
Booth  V.  80 
Keefe  v.  jj 
Marshall  v.  141 
Murdock  v.  167 
Randolph  v.  80 
Boston  &  Hoosac  Tunnel  R.  R.,  Hill 

V.  84,  117 
Boston  &  Lowell  R.  R.  Co.,  Green  v. 
209 
Hill  Man.  Co.  v.  22,  35,  284 
V.  Proctor,  143 
Boston  &  Me.  R.  R.,  Cheney  v.  143, 
146,  178 
V.  Chipman,  180,  265 
Fox  V.  237 
Keeley  v.  238,  247 
Langley  t/.  1 1 1 
Mayall  v.  243 
Moses  7/.  94,  114.  233,  331 
Norway  Plains  Co.  v.  331,  332 
Boston  &  Savannah  S.  S.  Co.,  Butler 

V.  8,  26,  27 
Boston  &  W^orcester  R.  R.,  Darling 
V.  285 
Malone  v.  264 
Boston  &  W.  R.  R.,  O'Brien  v.  174 
Boston,  &c.  R.  R.,  Rice  v.  331 
Boston,  Hartford  &  Erie,  School  Dis. 

V.  84 
Boston  Nav.  Co.,  Plaisted  v.  297,  301 
Bostwick  V.  Bait.  &  O.  R.  R.  236,  270, 

272,  273 
Boswell  V.  H    R.  R.  Co.    88 
Bourne  v.  Gatliffe,  331 
Bowen,  United  States  v.  21 


TABLE   OF   CASES. 


Xlll 


Bowker,  Kelley  v.  294 
Boyce  v.  Anderson.  98 

V.  Edwards,  192 

V.  Welch,  298 

White  V.  269 
Boyd  V.  Estis,  113 

Michigan  Cent.  R.  R.  Co.  v.  270 
Boylston  Ins.  Co.,  Jackson  v.  340 
Brace,  Barber  v.  299 
Brackett  v.  Ndrton,  184 
Bradley  v.  Wash.  A.  &  G.  Co.  198 
Bradshaw,  Chappell  v.  41,  51 

V.  South  Boston  R.  R.  165 
Bradstreet  v.  Heran,  290,  313 
Brady.  Baltimore  &  Ohio  R.  R.  Co.  v. 

86,  231.  250 
Brainard,  Blumenthal  v.  233 

Cutts  V.  284 

Morse  v.  86,  231,  250 
Brame,  Ins.  Co.  v.  194 
Branch  v.  Wilmington,  &c.  R.  R.  Co. 

84 
Branner,  Dunn  v.  162 
Brantford  City,  The,  189,  319 
Brauerz*.  The  Almoner,  328,  330 
Brauss,  City  &  Suburban  R.  R.  169 
Breen  v.  Texas  &  Pacific  R.  R .  146 
Breese  v.  United  States  Tel.  Co.  227 
Brehme  z/.  Adams  Exp.  Co.  115,  222 
Brewer,  Atchison  &  Topeka  R.  R. 

Co.  V.  252 
Brick  V.  Brick,  198 
Bridgeport,  Nicholls  v.  59 
Bridges,  Walpole  v.  297 
Briggs  V.  Day,  73 
Brinson,  Baker  v.  257 
Bristol,  The,  44,  45,  47 
Bristol  &  Exeter  R.  Co., "Collins  v.  93 

V.  Collins,  281 
Bristol  &  Marine  Ins.  Co..  Allison  v. 

61 
Bristol  &  N.  W.  Ins.  Co.,  Carton  v. 

130 
Britannia,  The,  328 

Marx  V.  255 

The  Giglio  v.  256,  327 
Britannic,  The,  44,348 
British,  &c.  Ins.  Co.  v.  Gulf,  &c.  R.  Co. 

91,  339 
British,  &c.  Packet  Co.,  Smith  v.  79 
Britton  v.  Atlanta,  &c.  R.  R.  Co.  152, 

158 
Broadstreet  v.  Heron,  313 
Broadway  &  Seventh  Ave.  R.,  Putnam 

V.  90,  1 54 
Broadweld  v.  Butler,  246,  342 
Brock,  McCall  v.  108,  253,  310 
Brockett,  N.  J.  Steamboat  Co.  v.  172 


Brooke  ?y.  Grand  Trunk  R.  R.,  147 

V.  Pickwick,  207,  222 
Brooklyn  City  R.  R.,  Day  v.  321 

Sheridan  v.  176 

Stewart  ^.321 
Brooks,  Cheviot  v.  314 
Brown  v.  Adams  Exp.  Co.  231 

V.  Camden  &  Atlantic  R.    R» 
186,  206 

V.  Chicago,  &c.  R.  R.  171 

V.  Cunard  S,  S.  Co.  118,  122 

V.  Eastern  R.  R.  264 

"o.  Harris,  60 

V.  Kansas  City,  Ft.  S.  &  G.  R. 
Co.  136 

V.  Manchester,  Sheffield  &   L. 
R.  Co.  91 

Manchester  S.  S.  R.  Co.  v.  86 

Markham  v.  1 57 

V.  Memphis,  Sic.  R.  R.  151,  i57> 
158 

Orange  Co.  Bk.  v.  107,  1 14,  207 

V.  Spofford,  269 

V.  Wabash,  &c.  R.  R.  Co.  115 

V.  Wiley,  269 

V.  Wilkinson,  7,  40 
Browning  v.   Long  Island  R.  R.  127,. 

240,  241 
Brownlee,  Louisville   &   Nash.  R.  R. 

Co.  V.  84 
Brush  V.  S.  A.  &  D.  R.  R.  Co.  91 
Bryan,  American  Ins.  Co.  z'.  318 

Chicago  &  A.  R.  R.  Co.  z/.  17s 
Bryce  v.  Lorillard  Fire  Ins.  Co.  228 
Buchanan,  Gordon  v.  298 
Bucher  v.  Cheshire  R.  R.  219 
Buckland  v.  Adams  Exp.  Co.  224,  232 
Buddy  V.   Wabash  St.  L.  &  P.  R.  R. 

Co.  331 
Buffalo,  &c.  R.  R.,  Fenner  v.  283 

V.  O'Hara,  107,  109 

Penn.  R.  R.  v.  102 

Willets  V.  139,  176 
Buffalo  &  Erie  R.  R.,  French  v.  255 
Buffalo  &  P.  R.  R.  Co.,  Metz  7/.  1 12 
Bulkley  v.  Naumkeag  St.  Cotton  Co. 

310 
Burckle  v.  Eckhard,  185,  186 
Burges,  Steele  v.  328 
Burke,  Houston,  &c.   R.  R.  v.  85,  91, 
211 

Louisville  &  N.  R.  v.  176 

Miller  v.  243 
Burlington  &  M.  R.  R.  Co.,  Gregory 
V.  164 

McCune  v.  115,  206,  248 

V.  Rose,  132,  153,  179 
Burnard,  Davidson  v.  304 


XIV 


TABLE  OF  CASES. 


Burnham  2/.  Grand  T.  Ry.  Co.  167 
Burroughs  v.  Norwich  &  Worcester  R. 

R.  Co.  266 
Butler  V.   Boston   &  Savannah  S.  S. 
Co.  8,  26,  27 
Broadwell  v.  246,  342 
V.  Hudson  R.  R.  R.  210 
V.  Manchester  S.  &.  L.  R.  Co. 

140,  210 
Penn.  R.  R.  Co.  v.  85 
Button  V.  The  London  &  S.W.  Ry.  Co. 

325 
Buyers,  Leisy  v.  242,  247 
Byrne  v.  Schiller,  61 


Cadmus,  Earl  v.  122 

Cahawba,  Edwards  v.  328 

Cahn  V.  Michigan  Cent.  R.  R.  243 

Cain  V.  Garfield,  337 

Caldwell,  Express  Co.  v.  123 

V.  N.  J.  Steamboat  Co.  259 
V.  So.  Exp.  Co.  312,  314 
Calebs,  Merc.  Mut.  Ins  Co.  v.  339 
California,  The,  291 
California  Central  R.  R.,  Wright  v. 

151,  156,  172,  180 
Camden  &  Amboy  R.  R.  Co.  v.  Bal- 
dauf,  85,  210,  231,  252 
V.  Bausch,  107,  no,  267 
Edsall  V.  279 
V.  Farnham,  76,  85,  117,   222, 

227,  257 
V.  Forsyth,  279 
Lamb  v.  236,  252,  255,  257,  270, 

271,  277, 278 
Maghee  v.  237,  262,  281 
Manhattan  Oil  Co.  v.  278,  281, 
284 
Camden  &  Atlantic  R.  R.,  Brown  v. 

186,  206 
Cameron  v.  Rich,  259 
Camors,  Watts  v.  197 
Campbell,  Bissell  v.  295 
V.  Evans,  59 
Louisville,   &c.  R.    R.  v.    282, 

283 
V.  Morse,  236 
State  V.  142,  174 
Vance  v.  64 
Camp  Point  Mfg.  Co.  z'..Ballou,  81 
Canfield  v.  B.  &  O.  R.  R.  Co.  87,  234, 

253,255,262 
Canima,  The,  44 
Cantling  v.  Hannibal  &  St.  Joseph  R. 

R.242 
Capehart  v.  Seaboard,  &c.  Railway, 
125 


Caperton,  So.  Ex.  Co.  v.  123 
Captain  John,  The,  333 
Carey,  Commonwealth  v.  1 57 
Carl  Johan,  The,  11,  14 
Carlotta,  The,  300 

Carlson  v.  Oceanic  Steam  Nav.  Co.  49 
Carman,  Gilmore  v.  302 
Carman's  Exp.  Co.,  Collins  v.  16 
Carnegie,  Jessup  v.  200 
Caroline,  Whitmore  v.  248 
Carpenter  v.  Grand  Trunk  R.  R.  Co. 
149 

V  Ins.  Co.  13 

V.  Washington  &  G.  R.  R.  Co. 
170 
Carper,  Cinn.  &c.  R.  R.  Co,  v.  158 
Carr  v.  Lancashire  &  York  R.  R.  Co. 
86,  235 

V.  Michigan,  342 

Williams  v.  201 
Carroll  v.  Mo.  Pacific  R.  Co.  84,  88 

Nash.  R.  R.  Co.  z/.  176 

V.   N.   Y.  &  N.   H.  R.  R.  157. 

Overland,  &c.  Express    Co.  v. 
246 

V.  Staten  Island  R.  R.  Co.  50, 
51,  108.  219 
Carrow,  Mich.  Cent.  R.  R.  Co.  v.  207 
Carson  v.  Harris,  289 
Carstairs  v.  Merchants'  &  Traders'  Ins. 

Co.  340 
Cassilay  v.  Young,  342 
Cayzer  v.  Taylor,  80 
Central  Line,  &c.  v.  Low,  297 
Central  Pac.  R.  R.,  Cody  v.  149 

Drew  V.  178 

Phister  v.  99,  210 
Central  R.  R.  &  Banking  Co.  v.  Avant, 
286 

V.  Smitha.  83,  102,  216 
Central  R.  R.  of  N.  J.  v.  Green,  152 

Kinney  v.  87,  107,  no 
Central  R.  R.  Co.  v.  Avant,  286 

V.  Combs,  286 

V.  Dwight  Manfg.  Co.  224 

V.  Kuhn,  261 

McClellan  v.\\\ 

National  Docks  •z'.  131 

V.  Smuck,  335 

York  Co,  V.  82,  227,  273,  275, 

324 
Chadwick,  Spencez/.  313 
Chamberlain  v.  Western  Transporta- 
tion Co.  16,  22,  24,  49 
Champlain  Trans  Co.,  Dougan  v.  51 
Farmers'  Bank  v.  76,  231,  233, 
242 


TABLE   OF   CASES. 


XV 


Chanslor,  Lemon  v.  107 
Chapin.  Goold  71.  284 
Chapman  v.  Erie  R.  R.  80 
Fisk  V.  297 
V.    Royal     Netherlands   Steam 

N.  Co.  43 
Steamship  Sultana  v.  331 
Chappell  V  Bradshaw,  41,  51 
Charleston    &    Savannah    R.    Co.    v. 

Moore,  210 
Charlotte  R.    R.    Co.,  Palmer  v.  148, 

169 
Chartered  Merc.Bk.  of  India?/,  Nether- 
lands India  S,  N.  Co.  199,  234 
Chasca,  The,  329 
Chase  v.  N.  Y.  Central  R.  R.  134 
Chastine,    Memphis  &  Charleston  R. 

R.  Co.  V.  171 
Chenewith.    Lackawanna   &    Blooms- 
burg  R.  R.  V.  158 
Cheney  v.  Boston  &  Me.   R.   R.    143, 
146,  178 
Hall  V.  253 
Chesapeake  &  O,  R.  R.  Co,,  Wilson  v. 

148,  265 
Chesapeake,   O.  &  S,   W,   R.    Co,  v. 

Wells,  152 
Cheshire  R.  R.,  Bucher  v.  219 
Chesholm,  Chic.   &  N.  W.  R.  R,  Co. 

V.   178,  233 
Chester,  Rossiter  v.  14 
Chevellier  v.  Patton,  247 
Cheviot  V.  Brooks,  314 
Chicago  &  Alton  R.   R.,  Churchill  v. 
146,  148 
Dawson  v.  84  . 
V.  Flagg,  135,  171 
T/.  Randolph,  154,   159 
V.  Shea,  211,  212 
V.  Simms,  123,  126 
Thompson  v.  128 
Chicago,  B.  &  Q.  R.  R.,  Bryan  v.   175 
V.  Griffin,  154,  168 
V.  Manning,  259,  296,  308 
Palmer  v.  283 
V.  Parks,  133,  135,  137,  171 
Chicago  &  Great  Eastern  R.  R.  Co., 

V.  Harney,  81 
Chicago  &  G.  T.  R.  Co.,  Thomas  v. 

154 
Chicago,   M.   &  St.  P.  R.  R.,  Cream 
City  R.  R.  V.  238 
Gould  V.  176 
Hemingway  v.  176 
Hutchison  v.  214,  227 
Chicago  &  N.  W.  R.  R,,  Ayres  v.  105, 
248,  257 
V.  Bannermann,  150 


Chicago  &  N.  W.R.  R.,  Bass  7/.  151, 
158 

V.  Chesholm,  178,  233 

V.  Gandy,  260 

German  v.  loi,  270 

Haley  •z'.  155 

Hart  V.  217 

Laughlin  v.  253 

Marquette  v.  \z^i 

McDaniels  v.  235 

McDonald  and  wife  v.  78 

V.  Merrill,  178,  233 

V.  Montford,  229,  274 

V.  Peacock,  172 

Peet  V.  246 

Peik  v.  200,  349 

People  V.  132,  174 

Post  7/.  149,  150 

Sherman  v.  142,  163 

Stone  7/.  146,  163,  173,  176 

V.  Swett,  81 

Wightman^/.  142 

V.  Williams,  151,  152,  159 
Chicago  &  Rock  Id.  R.  R.  v.  Warren, 

33I1  332 
Chicago,  R.  I.  &  P.  R.,  Paine  v.  135 

Way  V.  108,  150 
Chicago,    St.    L.    &  P.   R.  R.  Co.  v. 

Bills,  159,  173 
Chicago,  St.  Louis  &  New  Orleans  R. 

R.  V.  Moss,  235,  249,  258 
Chicago,  &c.  R,  R.  v.  Abels,  98,  118, 
258 

Brown  v.  lyi 

Curl  V.  135.  174,  176 

Curtis  V.  193.  303 

Denton  v.  257 

Dougherty  7/.  218 

Everett  v.  134,  171 

Field  V.  228.  229 

Harmon  v.  98,  115 

Hooper  v.  244 

McDaniel  v.  188,  235 

Miltimore  7/.  216 

V.  Moss,  235,  249,  258 

O'Rourke  z/.  214 

V.  Peacock,  172 

Porter  7/.  331 

V.  Scott,  331,  332 

Tardos  v.  285 

V.  Thompson,  208 
Childs    V.    Little    Miami    R.    R.    Co. 

-55 

China,  The,  46 

Chipman,  Boston  &  M,  R.  R.  v.  180, 
256 

Chippendale  v.  Lancashire  &  York- 
shire R,  Co.  78 


XVI 


TABLK   OF  CASES. 


Chisholm  v.  Northern  Transp  Co.  33, 

42,  50 
Choteau  v.  Steamboat  "  St.  Anthony," 

112,  248 
Chovin,  State  v.  131,  133 
Christenson  v.  Am.  Exp.  Co.  84 
Churchill  z>.   Chicago  &  Alton  R.  R. 

146,  148 
Cincinnati,  &c.  R.  R.,  Carper  v.  158 

Crawford  v.  140 

V,  Marcus,  207 
Cincinnati  &  H.  D.  R.  R.  Co.,  Fatman 
V.  90 

Muller^/.  223 
Cin.  S.  &  C.  R.  R.  Co.,  Gray  v.  153 

V.  Skillman,  170 
Cisco  V.  Roberts,  17,  345 
City  Bank  of  N.  Y.  v.  Skelton,  316 
City  of  Bridgeton,  Green  v.  153 
City  of  Columbus,  The,  26,  60 
City  of  Hartford,  The,  44 
City  of  Lowell,  Hildreth  v.  59 
City  of  Norwich,  The,  40,  55,  60,  62, 

63,  65,  68,  72,  83,  117 
City  &  Suburban  R.  R.  v.  Brauss,  169 
Civil  Service  Boards,  People  v.  345 
Claflin,  Wills  v.  349 
Clark  V.  Barnwell,  253,  255,  292 

V.  Faxton,  233 

Hedley  t'.  313 

V.  McDonald,  98 

Oil  Creek  &  All.  Ry.  Co.  v.  178 

V.  St.  Louis  R.  R.  Co.  94,  100 

V.  Wilmington  &  W.  R.  R.  Co. 

174 
'     V.  Wilson,  338 
Clarke  v.  Rochester  &  S.  R.   R.  98, 

loi 
Clayton,  Wallace  v.  303 
Cleary,  St.   Louis,   Kansas  City  &  N. 

Ry.  Co.  V.  273 
demons,  Houston,  &c.  R.  R.  Co.  v. 

154,  156 
Cleopatra,  The,  Cochran  v.  298 
Cleveland,  The,  Hunt  z/.  252,  253,  255 
Cleveland,  Columbus,    &c.   R.   R.  v. 

Bartram,  138,  147,  153 
Cleveland  &  Toledo  R.   R.,   Sisson  v. 

103,  238 
Cleveland,  P.  &  A.  R.  v.  Curran,  84, 
109,  266 
V.  Sargent,  215 
Cleveland  v.    N.   J.    Steamboat   Co. 

107 
Cloud  V.  St.  Louis  L  M.  &  S.  Railway 

Co.  163 
Clyde  V.  Graver,  240,  276 
Patterson  z".  255 


Cochran  v.  The  Cleopatra,  298 

V.  Dinsmore,  255 
Cody  V.  Central  Pacific  R.  R.  149 
Coffin  V.  N.  Y.  Central  R.  R.  270 
Coflin,  Barker  v.  142,  170,  231 
Coger  V.  Northwest  Union  Packet  Co. 

153 
Coggs  V.  Bernard.  317 
Cohen  v.  Frost,  162 
Colder,  Laing  v.  85,  260 
Cole  V.  Goodwin,    76,   87,    114,    232, 

233 

V.  Malcolm,  338 

Martin  v.  269 

V.  Western  Union  Tel.  Co.  123 
Colegrove  v.  N.  Y.  &  N.  H.  155 
Coleman,  Jencks  v.  157,  158 

V.  New  York  &  N.  H.  R.  R. 
Co.  172 
Collector,  The,  Hadden  v.  95 
Collenberg,  The,  305 
Collender  v.  Dinsmore,  227 
Collier  v.  Swinney,  308 

V.  Valentine,  262 
Collins,  Baldwin  v.  206 

Bristol  &  Exeter  R.  R.  v.  281 

V.  Bristol  &  Exeter  R.  Co.  93 

V.  Carman's  Exr.  16 
Colon,  The,  327,  329 
Colonel  Ledyard,  The,  245 
Colt  V.  McMichen,  298 
Columbia  Steam  Nav.  Co.,  Leonard  v, 

200 
Columbo,  The,  292,  295 
Columbus,   The    City  of,  Sturges  v. 

342 
Columbus  &  W.  R.  R.  Co.,  Tillermaa 

V.  285 
Combe,  Boehm  v.  322 
Combs,  Central  R.  R.  Co.  v.  286 
Comegys  v.  Vassar,  338 
Commercial  Bank  of  Chicago,  North 

Penn.  R.  Co.  v.  244,  337 
Commissioners  of  Excise,  German  v. 

316 
Common  Council,  People  v.  345 
Commonwealth   Ins.    Co.,    Carey  v. 

157 
Robinson  v.  14 

Vermont  &  Mass.  R.  R.  Co.  v, 
230 
Commonwealth,  Power  t/.  131,  157,  ^S^ 
Compagnie  Francais,  Paturzo  v.  329, 

330 
Compromise,  The,  Hatchett  v.  342 
Compta,  The,  234,  254 
Compton  V.  Von  Volkenburgh,  174 
Concord  R.  R.,  Johnson  v.  242 


TABLE  OF  CASES. 


XVll 


Condict  V.  Grand  Trunk  R.  R.  235 
Condon  v.  Marquette,  &c.  R.  R.  283 
Conkey  v.  Milwaukee  R.  R.  282 
Conn.  Fire  Ins.  Co.,  Erie  Transp.  Co. 
V.   199 
V.  Erie  R.  Co.  338 
Conn.  Ins.  Co.,  Craig  z'.  31,  43,  53 
Conn.  Mut.  Life  Ins.  Co.  v.  Schaefer, 

64 
Conn.  Pass.  R.  R.  Co.,  Beard  v.  79 
Conn.  River  Steamboat  Co.,  Hall  v. 

78 
Connell,  Penn.  R.  R.  v.  168 
Connolly  v.  Crescent  City  R.  R.  Co. 

173 
Continental  Ins.  Co.,  Craig  v.  31,  53 

Phoenix  Co.  v.  198,  199 
Contra  Costa  S.  N.  Co.,  Yeomans  v. 

no 
Convoy's  Wheat,  The,  245 
Cook  V.  Holt,  316 

Cooiey  V.  Port  Wardens  of  Phila.  349 
Coombs  V.  New  Bedford  Cordage  Co. 
80,  81 
U.  S.  V.  16 
Cooper  V.  Berry,  241,  243 
Berry  t/.  259 
V.   Earl  of   Waldegrave,    184, 

192 
V.  Kane,  246 
Cooper  &  Boykins'  Ex.,  Berry  et  al.  v. 

83 
Cope  V.  Doherty,  19 
Copeland,  111.  Central  R.  R.  v.  284 

V.  N.   E.  Marine  Ins.  Co.  31, 

304 
Corbett  v.  23d  St.  R.  R.  Co.   131 
Corcoran,  Little  Rock,  M.  R.  &  T.  R. 

Co.  V.  255,  257 
Cordes,  Propeller  Niagara  v.  307,  311 
Corn  Ex.  Ins.  Co.,  Savage  v.  218 
Cornell,  Jardine  v.  172 
Cornforth,  Merch.  Des.  T.  Co.  v.  270 
Cornwall,  Mo.  Pac.  Ry.  Co.  v.  85,  104 
Costa  Rica,  The,  306 
Coulters,  Patapsco  Fire  Ins.  Co.  323 
County  of    Leavenworth   v.    Barnes, 

200 
Coup  V.  Wabash,  St.  L.  &  P.  Ry.  Co. 

106 
Covington  v.  Willan,  75 
Cowell  V.  Springs  Co.  16 
Cowley  V.  Davidson,  303,  308,  309 
Cox,  Indianapolis  &  C.  R.  R.  Co.  v. 
120 
V.  Petersen,  309 
V.  U.  S.  186 
Waters  v.  188,  201 
B 


Coxe,  Garrigues  v.  301 

V.  Heisley,  240,  246 
Cragin  v.  Lamkin,  201 

V.  N.  Y.  Cent.  R.  R.  Co.  87, 
98 
Craig  V,  Continental  Ins.  Co.  31,  43, 

53 
Crane,  Whitsell  v.  242 
Crapo  V.  Kelly,  190 
Crawford  ^i.  Cincinnati  R.  R.  140 

V.  Southern  R.  R.  284 
Cream  City  R.  R.  Co.  v.  Chicago,  M. 

&  St.  P.  R.  Co.  238 
Crescent  C.  R.  Co.,  Connolly  v.  173 
Cresson  v.  Phil.  &  Reading  R.  R.  140, 

179 
Crocker  v.  New  London  W.  &  P.  R. 

R.  Co.  133,  134,  138,  325 
Cromwell,  Bird  v.  307 
Crook,  Southern  Exp.  Co.  v.  83,231 
Crosby  v.  Fitch,  297 
Crouch  V.   London  &  N.  W.    R,  R. 

130,  210,  211 
Crudup,  111.  Cent.  R.  R.  Co.  v.  194 
Crum  V.  Bliss,  200 
Crystal  Palace  v.  Vanderpoel,  162 
Cuba,  The,  310 
Cubbedge  v.  Napier,  201 
Cullifor,  Hayn  v.  234 
Culver,  Gibson  v.  241 
Cunard,  Brown  v.  118,  122 

V.  E.  T.  V.  &  G.  R.  R.  118 
Curl  V.  Chicago  R.  I.  &  P.  R.  Co.  135, 

174,   176 
Curran,  Cleveland  P.   &  A.  R.  Co.  v. 
84,  109,  266 
V.  Warren  Chemical  &  M.  Co. 
260 
Currel,  Arayo  v,  189 
Currie,  Rothschild  v.  192 
Curry  v.  Mount  Sterling,  59 
Curtis  V.  Chicago,  &c.  R.  R.  Co.  303 
V.  Delaware,  L.  &  W.  R.  193, 

194,  195 
Michigan  Central  R.  R.  v.  104, 

245 
V.  Rochester  &  Syr.  R.  R.  260 
Cutts  V.  Brainerd,  284 
Czech  V.  Gen.  Steam  Nav.  Co.  256 
C,  H.  &  D.  &  M.  R.  R.  V.  Pontius,  84 


Dagget,  Spencer  v.  307 

Dalby,  St.    Louis,  &c.  R.  R.  v.  135, 

137 
Dallet,  Forbes  %>.  261 
Dalzell,  Spencer  v.  307 
V.  The  Saxon,  283 


XVlll 


TABLE  OF  CASES. 


Darling  v.  Boston  &  Worcester  R.  R. 

285 
Darnell,  Adams  Exp.  Co.  v.  244 

Pac.  Exp.  Co.  V.  123 
Davenport,  Fowler  v.  297 
Daves,  Haywood  v.  201 
David  and  Caroline,  The,  327 
Davidson  v.  Burnard,  304 

V.  Cowley,  303,  308,  309 

V.  Graham,  84,  263 
Davies  v.  N.  Y.  &  N.  E.  R.  R.  Co. 

194 
Davis,  Forbes  v.  162 

Graham  &  Co.  v.  84, 93,  263 

Haywood  v.  201 

Morrison  v.  237,  269,  303,  308 

Stiles  V.  316,  317 

Wabash  &  St.  Louis  R.  R.  Co. 

309 
Dawson  v.  Chicago  &  A.  R.  R.  84 
Georgia  Ins.  Co.  v.  304 
V.  St.  Louis  R.   R.  Co.  123 
Day,  Briggs  v.Ji 

V.  Brooklyn  City  R.  R.  321 
V.  Owen,  152,  158 
Dean,  Little  Rock  &  F.  S.  R.  R.  Co. 

V.  145,  148 
Decker,  Huntington  &  Broad  Top  R. 
R.  Co.  V.  80 
Prentiss  v.  120,  263,  264 
DeCuadra  v.  Swan,  61 
DeCuir,  Hall  v.  153 
Dedekam  v.  Vose,  327 
DeGraff  v.  N.  Y.  C  &  H.  R.  R.  R.  80 
Delaware,  The,  245,  247,  269 
Delaware  &  Hudson  Canal  Co.,  Bevier 
V.  79 
English  V.  169,  170 
Delaware,  &c.  R.,  Round  v.  321 
Delaware,  L.  &  W.  R.,  Atwater  7/.  177 
Curtis  V.  193 
Gale  V.  146 
Pease  v.  174 
Wasmer  z/.  1 11 
Delhi,  The,  259,  327 
DeLucas  v.  New  Orleans,  &c.  R.  R. 

134,  135,  139 
Demarest  v.  Wynkoop,  16 
Dempsey  v.  Kipp,  247 
DeNederlandsche,  &c.  Co.,  Feldman  v. 

71 
Denmark.  The,  121,  209 
Denn  v.  Reid,  46 
Dennick  v.  R.  R.  Co.  194 
Denny  v.  N.  Y.  C.  &  H.  R.  R.  R.  145, 

237 
Denton  v.   Chicago,  &c.  R.    R.   Co. 

257 


Denver  R.  Co.,  Oppenheimer  v.  163 

Depau  V.  Humphreys,  187 

Derby,  Phil.  &  Reading  R.  R.  Co.  v. 

82,  106,  157 
Derwort  v.  Loomer,  76,  233,  240 
Des  Moines  Vail.  R.  Co.,  Rose  v.  91, 

113 
Detroit  &  Michigan  R.  R.,  Strohn  v. 

229,  270,  313 
Detroit   &   Milwaukee   R.  R.   Co.  v. 

Adams,  238,  271 
Devillers  v.  Bell,  283 
DeWitt  V.  Barley,  347 
Dial  V.  Reynolds,  68 
Diaz  V.  The  Revenge,  321 
Dibbin,  Hinton  v.  49,  86,  92 
Dice  V.  Willamette  Trans.  Co.  147 
Dickinson  v.  Edwards,  187 

Ex  part e^  185 
Dickson,  Wilson  v.  7,  30,  37,  61 
Dietrich  v.  Penn.  R.  R.  103,  143,  146, 

159,  160,  163,  178 
Dillars  v.  Louisville  &  N.  R.  R.  Co. 

227,  231 
Dillon  V.  N.  Y.  &  Erie  R.  R.  Co.  284 
Dinsmore,  Belgerz/.  115,  117,  226,  227, 
228 

Cochran  v.  255 

CoUender  v.  227 

Ghormley  v.  129 

Gott  V.  231,  271 

Hirshberg  T/.  123,  126 

Huntington  v.  222,  223 

Kirkland  v.  226,  227,  229,  241 

Magnin  z/.  93.  94,  117,118,  119, 
120,  208,  211,  227,  234 

V.  Neresheimer,  87 

Smith  V.  123,  128 

Wetzell  v.\z\ 
Doane  v.  Keating,  269 

N.  Y.,  C.  &  St.  L.  R.  Co.  z/.  154 
Dodd,  Blossom  v.  225,  226,  269 
Dodson  V.  Grand  Trunk  R.  R.  Co.  86 
Doe,  Richards  v.  289 
Doherty,  Cope  v.  19 
Dole  V.  N.  E.  Ins.  Co.  312 
Donnell,  Sproat  v.  246,  247 
Donovan,  Batson  v.  1 14,  209 
Doran  v.  East  River  Ferry  Co.  107 
D'Orbigny  v.  Guerin,  26 
Doris  Eckhoff,  The,  55 
Dorman,  St.  Louis  &  S.  E.  R.  Co.  v. 

78,  99 
Dorr  V.  New  Jersey  Steam  Navig.  Co. 

76,  87,  221,  227,  233,  241 
Dougan  v.  Champlain  Trans.  Co.  51 
Dougherty  v.  Chicago,  «S:c.  R.  R.  Co. 
218 


TABLE   OF   CASES. 


XIX 


Down  V.  Fromont,  121 

Downer,   W.    Transportation    Co.   v. 

2C2     2  ■>  ? 

Downs  V  N.  Y.  &  N.  Haven  R.  R. 

140,  174,  238 
Dows  V.  Rush,  288 
V.  Perrin,  288 
Drew  V.  Central  Pac.  R.  R.  178 
Drew  Theo.  Sem.,  Hollis  v.  95 
Drury,  Laveroni  v.  300 
Dryden  v.  Grand  Trunk  Railway,  16, 

143 
Dry  Dock,  E.  B.  &  B.  R.  Co.,  Walker 

V.  142 
Dubuque,  Gelpcke  v.  200 
Dubuque,  &c.  R.  R.,  Francis  v.  331 
Duero,  The,  86 
DuLaurans  v.  St.  Paul  &  Pacific  R.  R. 

135 
Duling  V.  Philadelphia,  W.  &  B.  R.  R. 

159,  160,  178,  243 
Dunlap  V.  The  International  Steam- 
boat Co.  49,  116 
V.  N.  Pac.  R.  R.  Co.  154 
Dunn  V.  Branner.  162 

V.  Grand  Trunk  R.  R.  Co.  78 
V.   Hannibal  &  St.   Jo.   R.    R. 
102,  129,  283 
Dunphy  v.  Erie  R.  R.  Co.  145,  178 
Dunseth  v.  Wade,  342 
Dunson  v.  N.  Y.  Central  R.  R.  236, 

282,  289 
Dupont  V.  Vann,  298 
Durkin,  Railway  Co.  v.  78 
Dusenberry,  Little  v.  286 
Duyckinck,  Watson  v.  60 
Dwight    Man.    Co.,  Central  R.  R.  v. 

224 
Dyer  v.  National  S.  S.  Co.  9,  71 
Dykez/.  Erie  R.  R.  Co.  193,  194,  195 
D.  &  N.  W.  R.  Co.,  Hoffbauer  v.  174, 

175 

Eagan  v.  Tucker,  80 

Eagle,  The,  15 

Earle,  Bank  of  Augusta  v.  16,  182 

V  Cadmus,  122 

Haley  t/.  218 

Merritt  v.  219,  298 

Phillips  V.  206,  210,  218 
Earl  of  Waldegraff,  Cooper  v.   184, 

192 
Earnest  v.  Express  Co.  83,  117 
Eastern  R.  R.,  Brown  v.  264 

Hurt  V.  108 
Eastern  S.  Co..  Tarbox  v.  266 
East  Line  R.  R.,  Hull  v.  166 

V.  Lee,  108 


East  River  Ferry  Co.,  Doran  v.  107 
East  St.  Louis  R.  Co.  z/.  Wabash,  St. 

L.  &  P.  R.  Co.  333 
East  Tenn.  &c.  R.  R.,  Cunard  v.  118 

V.  Fain,  176 

Gibson  and  wife  v.  173 

V.  Johnston,  99 

Lane  v.  153,  180 

Trotlinger  ^'.  159,  160 

V.  Whittle,  105,  112 
Eaton,  Abbe  v.  266 

V.  Neumark,  282,  292 

Nichols  V.  347 
Eby,  N.  Y.  C.  &  H.  R.  R.  R.  v.  293 
Eckhard,  Burckle  v.  185,  186 
Eddy,  The,  331 

Edgerton  v.  The  Harlem  R.  R.  1 57 
Edmonds,  Montgomery,  &c.  R.  R.  v. 

216,  235 
Edsall  V.  Camden  &  A.  R.  R.  279 
Edwards,  Boyce  v.  192 

Dickerson  v.  187 

Phillips  V.  206,  210,  211,  212, 
218, 235 

V.  The  Cahawba,  328 

V.  White  Line  Co.  319 
Edwin,  The,  271,  310 
Egypt,  The,  24,  325,  336 
Eighth  Ave.  R.  R.  Co.,  Sanford  v. 

173 
Eleanora,  The,  45,  47 
Elias,  Homesley  v.  244 
Eliza  Jane,  The,  190 
Elkins  V.  Empire  Trans.  Co.  11^,  117 
Ella,  The,  34 
Ellis,  Gillett  v.  299 

V.  Narragansett  S.  S.  Co.  1 53 
V.  N.  Y.,  L.  E.  &  W.  R.  R.  80 
V.  Willard,  266 
Ellison,  Gulf,  &c.  R.  R.  Co.  v.  loi 
Elmendorf  v.  Taylor,  199 
Elmore  v.  Sands,  142,  143,  178 
Elwell  V.  Geibei,  53 
Empire  City  Bank,  The,  58,  59 
Empire   Transp.  Co.,  Elkins  v.  115, 
117 
V.  Wamsutta  Oil  Refining  and 
Mining  Co.  85 
England  v.  Gripon,  51 
English  V,  Delaware  &  Hudson  Canal 
Co.  169,  170 
V.    The   Ocean   Steam    Navig. 
Co.  294 
Enrique,  The,  299 
Enterprise,  The.  67 
Epsilon,  The,  26,  27 
Equitable  Safety  Ins.  Co.,  Benner  v, 
61 


XX 


TABLE   OF   CASES. 


Erie  R.  Co.,  Blackstock  v.  316 

Blair  •z/.  113 

Bordeaux  v.  134 

Chapman  v.  80 

Conn.  Fire  Ins.  Co.  v.  338 

Dunphy  v.  145,  178 

Dyke  v.  193,  194,  195 

Ellis  V.  80 

Green  7^.  218 

Hibbard  v.  139,  140,  170,  174 

Knowlton  v.  84,  184 

-v.  Lockwood,  235 

McCarty  v.  332 

Paulmier  v.  80 

Rogers  Locomotive  Works  v. 
130 

Steinweg  v.  79,  227,  234 

Wentz  V.  142,  148,  163 

Whitworth   v.    236,    257,    263, 
278,  281 

V.  Wilcox,  213 

Wing  V.  236 
Erie  Transp.  Co.,  Phoenix  Ins.  Co.  v. 

47,  83,  118,  339 
Estes,  Nashville,  &c.  R.  R.  v.  312 
Estis,  Boyd  z/.  113 
Ethel,  The,  302,  320 
European  &  N.  A.  R.  R.,  Hanson  v. 

172 
Evans,  Campbell  v.  59 

V.  Fitchburg  R.  R.  98,  104 

V.  Hutton,  313 

V.  Memphis,  &c.  R.  R.  154 

Moore  v.  87,  221,  229 

V.  St.  Louis,  &c.  R.  R.  Co.  107 
144 
Evansville,  &c.  R.  R.  Co.  v.  Young, 

83 

Eveleigh  v.  Sylvester,  308 

Everett  v.  Chicago,  &c.  Railway  Co. 

I34<  171 
Southern  Exp.  Co.  v.  211,  212 
V.  Vendrj-es,  192,  194 
Ewart   V.   Street,  253,  297,  299,  305, 

307 
Exposition  Cotton  Mills,  Western  & 
A.  R.  Co.  V.  196,  234,  284,  286, 

327 
Express  Co.  v.  Caldwell,  123 
Earnest  v.  83,  117 
V.  Kountze  Bros.  83,  236 
Weil  V.  267 
Weir  V.  123,  124 


Fabbri  z/.  Kalbfieisch,  199 

V.  The  Mercantile  Mut.   Ins. 
Co.  240 


Fagan,    Mo.  Pac.    R.    R.   v.   85,   89, 

102,  124,  129,  246,  269 
Fain,  East  Tenn.  &c.  R.   R.   Co.  v. 

176 
Fairbank  v.  Haentzche,  81 
Fairchild,  Penn.  Co.  v.  188 

Slocum  V.  299 
Fairfield  v.  County  of  Gallatin,  200 
Faler,  New  Orleans,  &c.  R.  R.  Co.  v. 

235 
Falkenan  v.  Fargo,  230 
Falkner  v.  Ohio  &  Miss.  R.  R.  153, 

179 
Falvey  v.  Georgia  R.  R,  285 

V.  Northern  Transportation  Co. 
262 
Fargo,  Falkenan  v.  230 

Gorham  Man.  Co.  v.  206,  211 
Little  z^.  315 
Sutro  V.  2^s 

Westcott  V.  120,  127,  227,  230 
Farmers'  Loan  &  T.  Ass.,  Betts  v. 

215 
Farmers'  &  Mechanics'  Bank  v.  Cham- 
plain  Transportation  Co.  76,  233, 

242 
Farnham  v.  Camden  &  Amboy  R.  R. 

76,  85,  117,  222,  227,  257 
Farragut,  The,  158,  309 
Fassett  v.  Ruark,  294 
Fatman  v.  Cincinnati,  H.  &  D.  R.  R. 

Co.  93 
Faulkner  v.  Hart,  201,  203,  283,  331 
Favorite,  The,  298 
Faxton,  Clark  v.  233 
Fay  V.  The  New  World,  1 1 5,  228 
Feige  v.  Michigan  Central  R.  Co.  228 
Feldman   v.    De   Nederlandsche,  &c. 

Co.  71 
Fellows,  Vedder  7/.  131,  132,  141 
Fendrick,  Adams  Exp.  Co.  v.  83 
Fenner  v.  Buffalo,  &c.  R.  R,  283 
Ferguson  v.  Fyffe,  188 
Fern  Holme,  The,  256,  300 
Fibel  V.  Livingston,  231 
Field  V.  Chic.  &  R.  I.  R.  R.  Co.  228, 

229 
Fillebrown  7'.  Grand  Trunk  R.  Co.  222, 

224,  233 
Finch,  Pier  z/.  146,  147,  265 
Fink  V.  Albany  &  Susquehanna  R.  R. 

160,  242 
Finn  v.  Timpson,  253 
Fire  Ins.  Co.  v.  Lorrillard,  228 
Fireman's  Ins.  Co.  v.  Powell,  304 
First  Nat  Ins.  Co.  v.  Wilkinson,  123 
Fisk  V.  Chapman,  244,  297 
Fitch,  Crosby  v.  297 


TABLE   OF   CASES. 


XXI 


Fitchburg  R.  R.,  Evans  v.  98,  104 

Ford  V.  81 

Holden  v.  81 

Leonard  v.  246.  249 

Littlejohn  v.  108,  113 

Warren  v.  "]% 
Fitzhugh  V.  Wyman,  267 
Fix,  Lake  Erie,  &c.  R.  R.  v.  169 
Flagg,  Chicago  &  Alton  R.  R.  v.  135, 
171 

Parker  v.  302 
Fleming,  Louisville,  N.  &  G.  S.  R.  R. 

Co.  132,  139,  140,  176 
Flinn  v.  Phila.,  Wil.  &  Bait.  R.  R.  83 
Flint  &  Marquette  R.  R.  v.  Weir,  113 
Flushing  R.  R.,  Terry  v.  146,  178 
Folliard,  L  &  G.  N.  R.  R.  v.  162,   218 
Fond  du  Lac,  Olcott  v.  200 
Forbes  v.  Dallett,  261 

V.  Davis,  162 
Force  v.  Providence-Washington  Ins. 

Co.  5,  189 
Ford  V.  Fitchburg  R.  R.  81 
Gannel  v.  100 
Houston,  &c.  R.  R.  v.  142 
Forsyth,  Camden  &  Amboy  R.  R.  Co. 

V.  279 
Forsythe  v.  Walker,  214 
Forward  v.  Pittard,  302 
Foster,  The  C.  H.  45 
Fowler  v.  Davenport,  297 

V.  Hecker,  64 
Fox  V.  Boston  &  Me.  R.  R.  237 

Warfield  v.  16 
Fralof,  Railroad  v.  207 

N*.  Y.  C.  R.  R.  Co.  7/.  116,  118 
Francis   v.   Dubuque,  &c.  R.  R.  Co. 

331 
Frank  v.  Ingalls,  265 
Frankenberg,   III.  Central  R.   R.  Co. 

V.  284 
Franklin,  The  Lady,  266 
Franklin  v.  Twogood,  201 
Eraser  v.  Freeman,  321 
Frederick  v.  Marquette,  H.  &  O.  R. 

R.  Co.  169 
Fredericks,  T.  W.  &  W.  Ry.  Co.  v. 

81 
Freeman,  Eraser  2/.  321 

V.  Newton,  220,  264 
Wilson  V.  120 
French  v.  Buffalo  &  Erie  R.  R.  Co. 

255 
Lafayette  Ins.  Co.  v.  16 
V.  Star  Union  Co.  317 
Friedenrich  v.  Baltimore  &  O.  R.  R. 

150 
Fromont,  Donn  v.  \2\ 


Frost,  Bond  v.  266,  284,  289 

Cohen  v.  162 

Peoria  Ins.  Co.  v.  338 
Fuller  V.  Association,  86 

V.  Jewett,  80 
Fung  Shue,  The,  Simon  v.  236 
Fyffe,  Ferguson  v.  188 


Gaetano  and  Maria,  188 
Gaff,  et  al.,  Wright  v.  83 
Gage  V.  Tirrell,  270,  312 
Gagnon,  Goodrich  Trans.  Co.  v.  53 
Gaines  v.  Union  Trans.  Co.  235,  250 
Gainsbury,  Mason  v.  338 
Gaither  v.  Barnet,  308 
V.  Myrick,  337 
Gale  V.  Del,  L.  &  W.  R.  R.  146 
V.  Laurie,  7 
Levois  V.  206,  212 
Galena  &  Chicago  Union  R.  R.  Co.  v. 

Rae,  263 
Gales  V.  Hailman,  338 
Gallatin,  County  of,  Fairfield  v.  200 
Gallena  v.  Hot  Springs  R.  R.  Co.  172 
Gait  V.  Adams  Exp.  Co.  90 
Galveston,  &c.  R.  Co.  v.  Allison,  93 
Galveston,  H.  &  S.  A.  R.  Co.,  Good 

V.  127 
Gamecock,  The,  44 
Gana,  Barclay  v.  2,^7 
Gandy  v.  Chicago  &  N.  R.  R.  Co.  260 
Gann,  Georgia  R.  R.  v.  83 
Gannel  v.  Ford,  100 
Gants,  Atchison,  Topeka  &  S.  F.  R. 

Co.  V.  159,  160,  170.  171,  178 
Garden  City,  The,  24,  35,  39,  56,  67, 

73 
Garey  v.  Meagher,  248 
Garfield,  Cain  v.  337 
Garland,  Ex  parte,  69 
Garrett,  Louisville  &  Nash.  R.  R.  Co. 

V.  175 
Garrig^es  v.  Coxa,  301 
Garrison  v.  Memphis  Ins.  Co.  302 
Garston  Co.  v.  Hickie,  301 
Garton  v.  Bristol  &  N.  W.  R.  R.  Co. 

130 
Gatliffe,  Bourne  v.  331 
Gauche  v.  Storer,  290 
Geibei,  Elwell  v.  53 
Geismer  v.   Lake   Shore,   &c.  R.  R, 

315,  316 
Gelpcke  v.  Dubuque,  200 
General  Iron  Screw  Co.  v.  Schurmanns, 

19,  70 
General  Mutual  Ins.  Co.  v.  Sherwood, 

31,  304,  306 


XXll 


TABLE  OF   CASES. 


General   Steam    Nav.   Co.,   Czech   v. 

256 
General  Transp.  Co.,  Guillaume  v.  214 
Genesee  Chief,  The,  6 
George,  The  Ship.  14 
Georgia  Ins.  Co.  v.  Dawson,  304 
Georgia  Pac.  R.  R.  Co.,  Head  v.  164, 

167 
Georgia  R.  R.  v.  Bigelow,  144 
Falvey  v.  285 
V.  Gann,  83 
Mitchell  V.  99 
V.  Spears,  99,  231 
Georgia  R.  R.  &  B.  Co.  v.  McCurdy, 

166 
German  v.  Chicago  &  N.  W.  R.  R. 

loi,  270 
German  Ex.  Bank  v.  Comm.  Excise, 

316 
Germania  Ins.  Co.  v.  LaCrosse  &  Mil. 

R.  Co.  245 
Ghormley  7/.  Dinsmore,  129 
Gibbon   v.   Paynton,    209,    210,    212, 

241 
Gibson  v.  Culver,  241 
Gibson  and  wife  v.  E.  T.,  &c.  R.  R. 

Co.  173 
Giglio,  The,   v.  The  Britannia,  256, 

327 
Gilbert,  Richards  v.  306 
Gillenwater  v.  Madison  &  Ind.  R.  R. 

107 
Gillespie  v.  St.  Louis  &  Kansas  City 

R.  R.  237 
Gillet  V.  Ellis,  299 
Gilmer,  Higley  v.  no 
Gilmore  v.  Carman,  302 
Girard  Will  Case,  95 
Girolamo,  The,  12 
Glass  V.  Goldsmith,  266 
Gleadell  v.  Thompson,  335 
Gleason  v.  Goodrich  Trans.  Co.  161, 
220,  242 

V.  Virginia,  &c.  Ry.  Co.  296 
Glenn,  So.  Exp.  Co.  v.  123 

V.  So.  Express  Co.  124,  129 
Gloucester  Ins.  Co.  v.  Younger,  13 

Parkhurst  v.  304 
Glover,  The,  244 
Goddard  v.  Mallor^-,  236 

Richardson  v.  203,  331 
Godon,  Mechanics'  Bank  v.  281,  282 
Goggin  V.  The  Kansas,  125 
Golden  Gate,  The,  322 
Goidey  v.  Penn.  R.  R.  85 
Goldsmith,  Glass  v.  266 
Good  V.  Galveston,  H.  &  S.  A.  R.  Co. 
127 


Goodall  Co.,  Lord  v.  32 
Goodrich   Trans.  Co.,  Black  v.   118, 
120 

■J7.  Gagnon,  53 

Gleason  v.  120,  161,  242 

In  re,  27 
Goodwin,   Cole   v.   76,  87,   114,   232, 

233.  283 
Goold  V.  Chapin,  284 

Hillard  v.  133,  138 

State  V.  132,  134 
Gordon  v.  Buchanan,  298 

Oakley  v.  281,  282 

Shaw  V.  337 

Sunday  v.  320 
Gorham  Man.  Co.  v.  Fargo,  206,  211 
Gosling  V.  Higgins,  313 
Gott  V.  Dinsmore,  231,  271 
Gould  V.  Chicago,  M.  &  St.  P.  R.  Co. 
176 

V.  Hill,  76,  87 
Gowdy  V.  Lyon,  289 
Grace  v.  Adams,  222,  223 
Graham  &  Co.  v.  Davis  &  Co.  84,  93, 

263 
Graham,  Davidson  v.  84,  263 
Grand  Junction  R.    Co.,   Palmer    v. 

98 
Grand  Rapids  &  I.  R.  Co.,  Hufford  v. 

167 
Grand  Trunk  R.  Co.,  Baldwin  v.  172 

Brooke  v.  147 

Burnham  v.  167 

Carpenter  v.  149 

Condict  V.  235 

Dodson  V.  86 

Dryden  v.  16,  143 

Dunn  V.  78 

Fillebrown  v.  222,  224,  233 

Heinman  v.  87 

Keeney  v.  94 

Regan  v.  94 

V.  Stevens,  in 

V.  Sturm,  13 

Wilson  z/.  no 
Gratiot  v.  United  States,  345 
Gratitudine,  The,  324 
Graver,  Clyde  v.  240,  276 
Graves  v.    Hartford  5:  N.  Y.  S.  Co. 

331 
V.  Lake  Shore,  &c.  R.  R.  Co. 

117 
Graville  v.  Manhattan  R.  R.,  155.  156 
Gray  v.  Cin.  S.  R.  Co.  153 
V.  Jackson,  193 
V.   Missouri   River  Packet   Co. 

no,  U3 
V.  Schenck,  59 


TABLE  OF  CASES. 


XXlll 


Great  E.  L.  R.  Co.,  Baxendale  v.  115, 

121 
Great  Northern  Railway  Co.  v.  Mor- 

ville,  100 
Great  Western  Dispatch,  Lesinsky  v. 

283 
Great  Western  Ins.  Co.,  Atkinson  v. 

202,  323 
Great  Western  R.  Co.,  Aldrich  v.  276 
Hawkins  v.  "jy,  86 
V.  Hawkins,  216 
Lewis  V.   123,    124,    212,   227, 

282 
V.  Miller,  171,  172 
Robinson  v.  162 
Root  V.  234,  235,  284 
Sloman  7/.  210 
Wise  z/.  102.  213,  214,  332 
Great  Western,  The,  40,  62,  63,  71, 

72 
Green,  Bean  v.  233.  241 

V.  Boston  &  Lowell  R.  R.  Co. 

209 
V.  Central  R.  R.  of  N.  J.  152 
V,  City  of  Bridgeton,  153 
V.  Erie  R.  R.  Co.  218 
7'.  N.  Y.  Central  R.  R.  284 
Greene,  Alexander  v.  234 
Greenwood,  Lake  Shore  R.  R.  v.  153, 

243 
Gregory,  The,  44 

Gregory  v.  Burlington  &  M.  R.  R.  Co. 
164 
V.  West  Midland  Co.  78,  131, 

235 
Grey's  Executors  v.  Mobile  Trade  Co. 

259 
Griffin,  Blossom  v.  93 

Chicago,  B.  &  Q.  R.  R.  v.  154, 
168 
Griffith,  Ladue  v.  284 
Griggs  V.  Austin,  60 
Grinnell,  Lakeman  v.  324 
Gripon,  England  7/.  51 
Griswold  v.  N.  Y.  &  N.  Eng.  R.  R. 

Co.  107 
Grogan  v.  Adams  Exp.  Co.  85,  117, 

253 
Guerin,  D'Orbigny  v.  26 
Guibert,  Lloyd  v.  7,  188,  192 
Guillaume  v.  General  Transportation 

Co.  214 
Gulf,  &c.  R.  R.  Co.,  British,  &c.  Ins. 
Co.  V.  91,  339 
V.  Ellison,  loi 
V.  McCorquedale,  301 
Gulf,  Colorado,  &:c.  R.  R.  Co.  v.  Mc- 
Gown,  81,  85,  88 


Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trawick, 

123 
Gusi,  Matthiessen  &  W.  S.  Ref.  Co.  v. 

291 
Guthrie,  Adams  Exp.  Co.  v.  250,  251 
Guy  V.  N.  Y.,  O.  &  W.  R.  R.  Co.  175 
Shelby  v.  199,  348 


Haas  V.  Kansas  City,   Ft.  S.  &  G.  R. 

Co.  315,  316 
Hadd  V.    U.  S.  &   Canada  Exp.  Co. 

284 
Hadden  v.  The  Collector,  95 
Hadji,  The,  31,  118,  341 
Haentzche,  Fairbanks  v.  81 
Hagar  v.  N.  E.  Ins.  Co.  304 
Hailman,  Gales  v.  338 
Hale  V.  N.  J.  Steam  Navig.  Co.  86, 

184,  233 
Haley  v.  Chicago  &  N.  W.  R.  R.  Co. 

155 
V.  Earle,  218 
Hall  V.  Cheney,  253 

V.  Conn.  Riv.  Steamboat  Co.  78 

V.  DeCuir,  153 

Illinois  Central  R.  R.  v.  216 

Inhabitants  v.  283 

V.  Memphis,  &c.  R.  R.  Co.  142, 
168 

Owings  V.  64 

V.  Penn.  R.  R.  Co.  325 

V.  Railroad  Co.  338 

Siordett  v.  236 

Skinner  v.  284 

V.  South  Car.  R.  Co.  136,  172 
Halliday  v.  St.  L.,  Kansas  City  &  No. 

R.  R.  284 
Hallstead,  Whitehouse  v.  244 
Hamburg,    &c.  Co.,    Koenigsheim  v. 

327 
Hamilton  v.  N.  Y.  Central  R.  R.  148 

Pandorf  v.  301 

V.  Pandorf,  305 

Railway  Co.  v.  78 

V.  Third  Ave.  R.  R.  168 

V.  W.  &  N.  C.  R.  R.  Co.  269 

Wilson  V.  84,  99 
Hammond  v.  N.  E.  R.  R.  109,  113 
Hand  v.  Baynes,  93,  236 
Hannibal  R.  R.,  Hicks  7/.  131 

V.  Swift,  237 
Hannibal  &  St.   J.  R.  R.,  Cantling  v. 
242 

Dunn  V.  102,  129,   283 

Logan  V.  1 59 

Miller  v.  292,  296 

Spooner  v.  207 


XXIV 


TABLE  OF  CASES. 


Hansen,  Richards  v.  31 
Hanson  v.  European   &  N.  A.  R.  R. 
172 
Medina  v.  298 
Happy  V.  Mosher,  59 
Hardenbergh  v.  St.  Paul,  M.  &  M.  R. 

Co.  159,  172 
Harding  v.   International    Nav.    Co. 

285 
Hardy,  Parsons  v.  308 
Harlem  R.  R.,  Edgerton  v.  157 
Harmon,  Chicago,  &c.  R.   R.  v.  98, 

115 
Harmony  Insurance  F.  &  M.  Co.,  The, 

59 
Harmony  v.  Bingham,  303,  304 
Harnden  Exp.  Co.,  Hubbard  ^'.  312 
Meyer  v.  275 
Moriarty  v.  115,  275 
Harney,  Chicago  &  Great  Eastern  R. 

R.  Co.  V.  81 
Harper,  Little   Rock,    &c.   R.    R.  v. 

257 
Harris,  Adams  Exp.  Co.  v.  117,  279 
Brown  v.  60 
Carson  v.  289 
V.  Jex,  200 
Louisville,  &c.    R.  R.   z'.    141, 

176 
Michigan  Central  R.  R.  Co.  v. 

265 
Mo.  Pacific  Railway  Co.  v.  85, 

98,  100,  123,  127 
V.  Packwood.  114,  255 
U.   S.   Exp.    Co.   V.    123,   127, 
281 
Harrisburg,  The,  194 
Harrison  v.  London,  &c.  R.  R.  100 
Hart  7/.  Baxendale,  179 

V.  Chicago  &  N.  W.  R.  R.  Co. 

217 
Faulkner  v.  201,  203,  283,  331 
V.  Leach,  320 

V.  Penn.  R.  R.  Co.  116,  119 
Rice  V.  201,  203,  331 
Hartford,  The  City  of,  44 
Hartford  &  N.  H.  R.  R.,  Havens  v. 
139,  170 
State  V.  130 
Hartford  &  N.  Y.  S.  Co.,  Graves  v.  331 
Hartland,  Straker  v.  70 
Hartshorn,  Price  v.  295,  303 
Hartwell  v.  Northern  Pac.  R.  R.  228 
Harvey  v.  N.  Y.  C.  &  H.  R.  R.  80 
Schieffelin  v.  234 
V.  Terre  Haute  R.  R.  117 
Haskell,  Spring  v.  8,  23^  39 
Hastings  v.  Pepper,   104 


Hatchet  v.    Compromise,   The,    246, 

342 
Hatten  v.  Railroad  Co.  146 
Hatton,  Ohio  &  M.  R.  R.  Co.  v.  166 

V.  The  Melita,  190 
Havemeyer  v.  Iowa  Co.  200 
Woodruff «/.  333,  335 
Havens  v.  Hartford  &  New  Haven  R. 

R.  139,  170 
Hawk,  Ala.  G.  R.  S.  Co.  z/.  155 
Hawkins,  Great  Western  R.  R.  Co.  v. 
216 
V.  Great  Western  R.  R.  77,  86 
Hayes  v.  Kennedy,  301 

V.  N.  Y.  C.  &  H.  R.  R.  R.  174 
V.  Wells,  et  al.  206,  212 
Hayman  v.  Penn.  R.  R.  Co.  217 
Hayn  v.  Culliford,  234 
Haynes,  Adams  Exp.  Co.  v.  229 

111.  Central  R.  R.  Co.  v.  78,  79 
Hay  ward  Rubber  Co.,  Slater  ?/.  302 
Hapvood  V.  Daves,  201 
Hazard's  Adms.  v.  New  England  Ma- 
rine Ins.  Co.  301 
Hazeltine,  Lord  v.  18 
Hazen,  Pittsburg,  &c.  R.  R.  r^.  316 
Head  v.  Geo.  Pac.  Railway  Co.    164, 

167 
Heaton,  Michigan  S.   &  No.   Indiana 

R.  R.  Co.  V.  83,  92 
Hecker,  Fowler  v.  64 
Heddleston,  Ala.  G.  S.  R.  R.  Co.  v. 

166,  167 
Hedger,  Louisville,  Cin.  &  Lex.  R.  R. 

Co.  V.  71.  91,  105,  251 
Hedley  v.  Clark,  313 
Heiman  7'.  Grand  Trunk   R.  R.  Co. 

87 
Heimann  v.  Western  Union  Tel.  Co. 

125 
Heim  v.  M'Caughan,  107 
Heisley,  Coxe  v.  240,  246 
Helene,  The,  330 
Heller,  Petrie  v.  267 
Hellman  v.  Holladay,  210,  212 
Hemingway  v.  Chicago,  M.  &  St.  P. 

R.  176 
Henderson  v.  London  &  N.  W.  R.  L. 
R.  121 
Penn.  R.  R.  Co.  v.  85,  88,  109, 

157 
Henlein,  South  &  N.  Ala.  R.  R.  v.  83, 

98,  117,  118 
Hennigh,  Pittsburgh,  St.  Louis  «S:  Cin. 

R.  R.  V.  169 
Hepburn  v.  Griswold,  200 
Hercules,  The,  45 
Heriot,  Schloss  v.  298,  299 


TABLE  OF  CASES. 


XXV 


Herman,  Rosner  v.  85 

Heron,  Bradstreet  v.  290,  313 

Herrick,  Minn,  &  St.  L.  R.  Co.  v.  86 

Hershey  v.  O'Neill,  322 

Heye  v.  North  German  Lloyd,  24,  26 

Heyl  V.  Inman  S.  S.  Co.  94,  236 

Hibbard  ?/.  Erie  R.   R.  Co.  139,  140, 

170,  174 
Hibernia  Ins.  Co.  v.  St,  Louis  Co.  298 
Hibernia  National  Bank  v.  Lacombe, 

192,  194 
Hibler  v.  McCartney,  324 
Hickie,  Garston  v.  301 
Hicks  V.  Hannibal,  &c.  R.  R.  Co.  131 

V.  Shield,  61 
Higgins,  Gosling  v.  333 

V.  N.  O.,  M.  &  C.  R.  R.  Co.  86, 
118 

V.   Watervliet  T.  &  R.  R.  Co. 

154 
Higley  v.  Gilmer,  no 
Hildreth  v.  City  of  Lowell,  59 
Hill  V.  Boston,  Hoosac  Tunnel,  &c.  R, 
R.  Co.  84,  117 
Gould  V.  76,  87 
V.  Idle,  313 
V.  Mackill,  79 
V.  Syracuse,  Binghamton,  &c. 

R.  R.  142,  143,  163 
V.  Sturgeon,  252,  262,  330 
Hill  Mfg.  Co.  V.  Boston  &  Lowell  R, 
_^  R.  22,  35,  284 

V.  Providence  &  N.  Y.  S.  S,  Co. 

23,  29,  302 
Providence  &  N.  Y.  S.  S.  Co.  v. 
9,  22,  24,  28,   52,  53,  54,  69, 
302,  324 
Hilliard  v.  Goold,  133,  138 
Singleton  v.  240,  326 
Swindler  v.  240,  263,  325,  326 
Hindoo,  The,  117 
Hine,  Pennsylvania  Co.  v.  144 
Hinkley  v.  N.  Y.  Central  R.  R.  241, 

268,  280 
Hinsdale,  Southern  Kansas  Ry.  Co.  v. 

133.  153 
Hinton  v.  Dibbin,  49,  86,  92 
Hirshberg  z/.  Dinsmore,  123,  126 
Historian,  The,  288 
Hoadley  v.  N,  Trans,  Co.  237 
Hodgdon  v.  N.  Y.,  New  Haven,  &c. 

R.  R,  244 
Hodgson,  Barker  v.  160,  313 
Hoeflich,  Philadelphia,  W.  &  B.  R.  R. 

Co.  V.  173 
Hoey,  Kaiser  v.  123 
Hoffbauer  v.  D.  &  N,  W,  R.  R.  Co. 

174,  175 


Hoffman  v.  N.  Y.  C.  &c,  R.  R,  321 

V.  The    Union  Ferry  Co.   158, 
218 
Hogan,  Reno  v.  76,  84,  327 
Holden  v.  Fitchburg  R,  R.  81 
Holladay,  Hellman  v.  210,  212 

V.  Kennard,  312,  318 
Holland  v.  725  tons  of  coal,  311 

Muser  v.  Wj 

Rawson  v.  283,  284 
HoUis  V.  Drew  Theol.  Sem,  95 
HoUister  v.  Nowlen,  76,  114,  207,  232, 

233,  241 
Holloway,  Memphis  &  Charleston  R. 

R.  V.  126 
Hollowell,  Adams  Exp.  Co.  v.  252 

Pitt,  C.  &  St.  L.  R.  Co.  V.  316 
Holmes,  Adams  Exp.  Co.  v.  252 
U.  S.  V.  204 
V.  Wakefield,  154,  173 
Holsapple  v.  Rome,  &;c.   R.   R.  103, 

234 
Holt,  Cook  V.  316 
Wahl  V.  282 
Holy,  Kaiser  v.  123 
Homesley  v.  Elias,  244 
Hooker  v.  Chicago,  &;c.  R,  R  244 
Jacobs  V.  284 
V.  Rath  burn,  252 
Hooper  v.  Wells,  et  al.  83,  90,  99,  1 1 1, 

238 
Hopkins,  Mobile  &  Ohio  R.  R.  Co.  v. 
88,  107,  117,  282 
V.  Westcott,  117,  122,  232 
Home,  Marsh  2'.  255 
Horst,  Indianapolis,  (Sec.  R.  R.  v.  79 
Hosea  v.  McCroy,  248 
Hostetter  v.  B.  &  O.  R.  R.  267 
Hotchkiss  V.  Artisans'  Bk.  337 
Hot  Springs  R.  R.,  Galena  v.  172 
Houck  V.  Southern  Pacific  R.  Co.  153 
Hough  V.  Railway  Co.  30 
Houghton  V.  Watertown  Fire  Ins.  Co. 

240 
Housatonic   R.    R.,    Sanford   v.   129, 

233 
Houston,  &c.  R.  R.  v.  Burke,  85,  91, 

211 

V.  demons,  154,  156 
V.  Ford,  142 
Howard,  Newburger  z/.  117 
Howard  Ins.   Co.,  Matthews  v.   304, 

306 
Howard,  The  Ship,  v.  Wissman,  291 
Hovvden,  The,  298 
Howes,  N.  Y.  Bal.  Dry  Dock  Co.  v. 

261 
Howland,  Zing  v.  334 


XXVI 


TABLE  OF   CASES. 


Hubbard  v.  Harnden  Exp.  Co.  312 

V.  Hubbard,  323 
Hudson  V.  Kansas  Pacific  R.  R.  Co. 

151 

Vernard  v.  299 
Hudson  R.  R.  R.  Co.,  Bliven  v.  316 

Boice  V.  143,  144 

Boswell  V.  88 

Butler  V.  i\o 

Nelson  v.  275,  277 

Sherman  v.  331 
Huffman,  S.  &  N.  Ala.  R.  R.  v.  154 
Hufford  V.  Grand  Rapids  &  1.  R.  R. 

Co.  167 
Hull  V.  East  Line,  &c.  R.  R.  Co.  166 
Humphreys,  Depau  v.  187 

Porterfield  v.  loi 
Hunnewell  v.  Taber,  93 
Hunnicutt,  Southern  Exp.  Co.  v.  123 
Hunsey  v.  Saragossa,  260 
Hunt  V.  Morris,  303 

V.  N.  Y.  &  Erie  R.  R.  Co.  284 

V.  The  Cleveland.  252,  253,  255 
Huntington   &  Broad  Top  R.  R.  Co. 
V.  Decker,  80 

V.  Dinsmore,  222,  223 
Hurst,  New  Orleans,  &c.  R.  R.  v.  107, 

244 
Hurt  V.  Southern  R.  R.  Co.  107 
Hutchinson  v.  Chicago,  St.  P.,  M.  & 

O.  R.  Co.  214,  227 
Hutton,  Evans  v.  313 
Hyde  v.  Trent  &  M.  Nav.  Co.  291, 

302 
Hyslop,  Tate  v.  340 


Idle,  HiUz^.  313 

111.  Cent.  R.  R.  Co.  v.  Adams,  86 

Arnold  v.  92,  154 

V.  Ashmead,  1 1 1 

V.  Copeland,  284 

V.  Crudup,  194 

V.  Frankenberg,  284 

V.  Haynes,  79 

V.  Hall,  216 

V.  Johnson,  139 

v.  Jonte,  83,  223,  275 

V.  Latimer,  172 

Law  V.  153,  172 

V.  McClellan,  1 1 1 

Mitchell  V.  284 

V.  Morrison,  86,  92,  99 

Mulligan  v.  223 

V.  Nelson,  154 

-z/.  Owens,  302 

Phelps  V.  22,7,  314 

■V.  Read,  81,  89,  92,  150 


111.  Cent.  R.  R.  Co.  v.  Smyser,  243 

V.  Sutton,  139,  171 

V,  Tronstine,  162 

V.  Whittemore,  132,  141,  172 
Indiana  Cent.  R.  R.  v.  Mundy,  83 
Indianapolis,  &c.  R.  R.  v.  Allen,  83 

V.  Cox,  120 

V.  Horst,  79 

V.  Jungten,  315 

V.  Jurey,  98 

Keep  V.  107 

V.  Kennedy,  139,  154 

Rice  z/.  213 

V.  Rinard,  138 

V.  Strain,  78 
Ingalls  V.  Bills,  78 

Frank  v.  265 
Inhabitants  v.  Hall,  283 
Inman  v.  So.  Carolina  R.  R.  Co.  83, 

253i  340 
Inman  S.  S.  Co.,  Heyl  v.  94,  236 

Sherman  v.  104,  305,  311 
Insurance  Co.  v.  Brame,  194 

Carpenter  t/.  13 

Marshall  «'.  318 

V.  Railroad  Co.  36,  284 
Int.  &  G.    N.   R.  Co.,  Beauchamp  v. 
160 

V.  Folliard,  162,  218 

V.  Tisdale,  315 

V.  Wilkes,  174 
Int.  Nav.  Co.,  Harding  v.  285 
Int.  S.  B.  Co  ,  Dunlap  v.  49,  116 
Invincible,  The,  174,  299,  327 
Ionic,  The,  212 
Iowa  Co.,  Havemeyer  v.  200 
Irvine,  Norfolk  &  W.  R.  Co.  v.  177 
Irwin  V.  N.  Y.  Central  R.  R.  250 
Isaacs  V.  Third  Ave.  R.  R.  320 

Jackson  v.  61 
Isaacson  z/.  N.  Y.  Central  &  H.  R.  R. 

93 

Isabella,  The,  300 

Ivey,  Mo.    Pac.  R.  Co.  v.  85,  86,  109, 
no,  186 


Jackson  v.  Andrews,  228 

V.  Babcock,  59 

V.  Boylston  Ins.  Co.  340 

Gray  v.  193 

V.  Isaacs,  61 

Parks  V.  347 

V.  Sacramento  R.  R.  Co.  331 

V.  Second  Ave.  R.  R.  321 
Jacob,  Nanson  v.  287 
Jacobs  V.  Hooker.  284 

V.  Tutt,  334,  337 


TABLE   OF   CASES. 


XXVll 


Jacobus  V.  St.  Paul  &  Chicago  R.  R. 

113 
James,  London  &  S.  W.  Railway  Co. 

V.  42 
Jane,  The,  and  Mathilda,  323 
Janson,  Ralli  v.  1 1 
Jarboe,  Mobile  &  Ohio  R.  R.  Co.  254, 

257,258 
Jardine  v.  Cornell,  172 
Jefferson,  The,  256,  327 
Jeffersonville   R.  R.    Co.   v.   Rogers 

135,  167 
Jencks  v.  Coleman,  157,  158 
Jerome  v.  Smith,  140 
Jessup  V.  Carnegie,  200 
Jewett,  Fuller  v.  80 

McKinney  v.  218,  333,  334 
Stevenson  v.  80 
Jex,  Harris  v.  200 
JiUson,  People  v.  174 
Joestings,  Merchants'  Dispatch  Co.  v. 

275 
John  Ritson,  The,  189 
Johnson  v.  Concord  R.  R.  242 

Illinois  Central  R.  R.  v.  139 

V.  Lightsey,  267 

Moss  ^'.  155 

V.  N.  Y.  Central  R.  R.  Co.  93, 

245 
?/.  Phila.,  W.  &  B.  R.  R.  C0.108, 

148,  163,  166 
The  Schooner  Emma,  253 
z/.  318  Tons  of  Coal,  248 
Johnston,  E.  Tenn.  &c.  R.  R.  v.  99 
Jones  V.  N.  Y.  C.  &  H.  R.  R.  R.  80 
V.  Pitcher,  297,  301,  305,  306 
V.  Sims,  90,  107 
V.  Voorhees,  84,  233 
Jonte,  111.  Cent.  R.  R.  Co.  v.  83,  223, 

275 
Jose  E.  More,  The,  44,  65,  70 
Judson  V.  Western  R.  R.  Corp.  117, 

222,  231,  242,  279 
Junction   R.   R.  Co.  v.  Bank  of  Ash- 
land, 185,  187 
Jungten,  Ind.  Railroad  Co.  ■z/.  315 
Juniata  Paton,  The,  45,  255,  260 
Junkerman,  Shuenfeldt  v.  184 
Jurey,  Indianapolis  &  St.  Louis  R.  R. 
V.  98 
Mobile,  &c.  R.  R.  Co.  v.  338 


Kahn,  Merch.  Desp.  T.  Co.  v.  236 

Kain  v.  Smith,  80,  112 

Kaiser  t/.  Hoey,  123 

Kalbfleish,  Fabric'.  199 

Kallman  v.  U.  S.  Exp.  Co.  84,  250,  255 


Kane,  Cooper  v.  246 

Kansas  &  St.  G,  R.  R.  Co.,  Brown  v. 

136 
Kansas  City,  Ft.  S.  &  G.  R.  Co.,  Haas 

■V.  315,316 
Kansas  City  &  St.  J.  R.  R.  Co.,  Davis 
V.  176 

Owens  V.  176 
Kansas  Pac.  Ry.  Co.,  Hudson  v.  i^i 

V.  Kessler,  167,  180 

V.  Nicholls,  99 

V.  Reynolds,  255 

V.  Rice,  125,  129 

V.  Simpson,  118 
Kansas  R.  R.,  Goggin  v.  125 
Kate,  The,  333 
Kathleen  Mary,  The,  333 
Katzenberger,  Louisville,  N.   &  G.  S. 

R.  R.  Co.  V.  162 
Kaufman.  Southern  Exp.  Co.  t/.  213 
Kay  V.  Wheeler,  300 
Keating,  Doane  v.  269 
Keefe  v.  Boston  &  Albany  R.  R.  Co. 

77 
Keeley  v.  Boston  &  Maine  R.  R.  Co. 

238,  247 
Keeney  v.  G.  T.  R.  Co.  94 
Keepz*.  Indianapolis,  &c.  R.  R.  107 
Keith  V.  Amende,  290 
Kellogg  V.  Larkin,  95 
Kelly  V.  Bowker,  294 

Crapo  V.  190 

Transfer  Co.  t/.  155 
Kelsey  v.  Michigan  Central,  179 
Kember  v.  Southern  Exp.  Co.  267 
Kennard,  Holliday  v.  312,  318 
Kennedy,  Bank  v.  198 

Hayes  v.  301 

Indianapohs,  &c.  R.  R.  v.  139, 

154 
Kenney  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co. 

94 
Kent  V.  Bait.  &  O.  R.  R.  Co.  164 
Kentucky  Central  R.  R.  Co.  z/.Thomas, 

154 
Kenyon  v.  N.  Y.  Central  R.  R.  218 
Keokuk  R.  R.  Co.,  O'Neil  v.  242 
Ketchum  v.  American  Merc.   Union 

Exp.  Co.  261 
Kessler,  Kansas  Pac.  R.  R.  Co.  v.  167, 

180 
Keystone,  The,  327 
Kiff  V.  Atchison,  T.  &  S.  R.  R.  281 
Kilgore,  McGregor  v.  337,  342 
Kimball,  The,  60 

Kimball  v.  Rut.  &  Burl.  R.  R.  Co.  87, 
98.  233 
V.  Western  R.  R.  Corp.  218 


XXVlll 


TABLE  OF  CASES. 


King,  Lynx  v.  308 

V  Shepard,  307 

Steamboat    ''  New   World  "  v. 
79,  82,  113 

V.  Worthington,  64 
Kinney  t/.  Central  R.  R.  of  New  Jersey, 
87,  107,  no 

State  V.  173 
Kinsley,  Pendleton  v.  322 
Kipp,  Dempsey  v.  247 
Kirby  v.  Adams  Exp.  Co.  84,  254 

Smith  V.  70 
Kirkbridge,  Salter  v.  244 
Kirkland  v.  Dinsmore,  226,  227,  229, 

240,  241 
Kirtland  v.  Montgomery,  112 
Kirst  V.  Milwaukee,  &c.  R.  R.  253 
Klintock.  U.  S.  v.  204 
Knight,  St.  Louis,  I.   M.  &  S.  R.  Co. 

V.  292 
Knowlton  v.  Erie  R.  Co.  84,  184 

V.  Providence  &  N.  Y.  S.  S.  Co. 
22,  23,  28 
Knox  V.  Rives,  1 13 
Koch,  Post  7^.  316 
Koehler,  Roberts  v.  177 
Koenigsheim    v.   Hamburg,   &c.    Co. 

327 
KopitofFz/.  Wilson,  32 
Kountze   Bros.,   Express    Co.    v.    83, 

236 
Kuhn,  Central  R.  R.  v.  261 
Kuter  7/.  Mich.  Central  R.  R.  Co.  211 
K.  &  D.  M.  R.  Co.,  McCoy  v.  98 

Lacey,  Woolverton  v.  323 
Lackawanna  &  Bloomsburg  R.  R.  Co. 

V.  Chenewith,  158 
Lacombe,  Hibernia  Bank  v.  192,  194 
LaCrosse   &    Min.   P.  Co.,    Germania 

Ins.  Co.  V.  lif^ 
Ladue  v.  Griffiths,  284 
Lafayette  &  Indianapolis  R.  R.  Co.  v. 

Sims,  158 
Lafayette  Ins.  Co.  v.  French,  16 
Laing  v.  Colder,  85,  260 
Lake  Erie,  &c.  R.  R.  v.  Fix,  169 

Mauritz  v.  264 
Lake  Shore,  &c.   R.  Co.,  Babcock  v. 
277,  279,  284 

V.  Bennett,  315 

Geismer  v.  315,  316 

Graves  v.  W] 

V.  Greenwood,  153,  243 

V.  Perkins,  105 

V.  Pierce,  166 

V.  Rosenzweig,  151 


Lake  Shore,  &c.  R.  Co.,  Sheltin  v.  169 

V.  Spangler,  85 
Lakeman  v.  Grinnell.  324 
Lamb  v.  Camden  &  A.  R.  R.  Co.  236, 
252,  25s,  257,  270,  271,  277, 
278 

V.  Parkman,  249,  329 
Lambert,  Rich  v.  253,  329 
Lambertson,  Sanderson  v.  286 
Lamkin.  Cragin  v.  201 
Lancashire  &  York  R.  R.,  Carr  v.  86, 

235 
Chippendale  v.  78 
Lancashire,  &c.    R.  R.,  McManus  v. 

78,  131,  235 
Landrigan  ^/.  The  State,  170 
Lane  v.  E.  T.,  Va.  &  Ga.  R.  R.  Co. 

153,  180 
Langley  v.    Boston   &  Maine   R.  R. 

Ill 
Langworthy  v.   N.   Y.   &  Harlem  R. 

R.  90,  III 
Laning  z/.   N.  Y.  &  H.  R.  R.  R.  Co. 

80 
Lapham  v.  Atlas  Ins.  Co.  245 
Larkin,  Kellogg  v.  95 
Latimer,  111.  Central  v.  172 
Laughlin  v.  Chicago  &  N.  W.  R.  R. 

Co.  253 
Laurie,  Gale  v.  7 
Law  V.  111.  Cent.  R.  R.  Co.  153,  172 

Simmons  v.  238 
Law  Ass.  Co.  t.  Oakley.  338 
Lawrence  v.  Maxwell  246 

V.  Minturn,  216,  229,  299,  311 
V.  N.  Y..  Prov.  &  Boston  R.  R. 

Co.  86,  115,  252 
V.   Winona,     &c.    R.    R.    245, 
282 
Lawrenceburg  &  Upper  Miss.  R.  R. 

V.  Montgomery,  157 
Laveroni  v.  Drury.  300 
Lawton  v.  Sun  Mutual  Ins.  Co.  323 
Le  Breton  v.  Miles,  185 
Leach,  Hart  v.  320 
Lee  V.  Barreda,  60 

East  Line,  &c.  R.  R.  Co.  v.  108 
Leisy  v.  Buyers,  241,  247 
Leland,  Baxter  v.  245,  297,  329 
Lemon  v.  Chanslor,  107 
Lemont   v.    Washington,    &c.  R.    R. 

Co.  156 
Leonard  v.  Columbia  Steam  Nav.  Co. 
200 
V.   Fitchburg   R.    R.   Co.  246, 
249 

^^,  37,  45.  54 

V.  WhitwilJ,  47,  54 


TABLE  OF  CASES. 


XXIX 


Lesinsky  v.  Great  Western  Dispatch, 

283 
Lesser,   St.  Louis,  &c.  R.   R.  Co.  v. 

115 
Levering  et  al.  v.  Union  Transp.  & 

Ins.  Co.  84,  257 
Levinson  v.  Oceanic  Steam  Nav.  Co, 

10,  57,  58 
Levois  V.  Gale,  206,  212 
Levy  V.  Southern  Exp.  Co.  278 
Lewey,  Astrup  v.  300,  306 
Lewis   V.  Gt.    Western   Railway   Co. 
123,  124,  212,  227,  282 
V.  Ludwick.  312 
V.  N.  Y.  Sleeping  Car  Co.  76, 

84,  230 
V.  Smith,  252 
Turner  v.  185 
Lexington  Case,  12 
Leysor,  Merch.  Disp  Co.  v.  228 
Lightsey,  Johnson  v.  267 
Lillis  V.    St.    Louis   R.  R.    142,    171, 

173 
Limburger  v.  Westcott,  263 
Linda  Flor,  The,  67 
Little,  Ala.  G.  S.  R.  R.  Co.  v.  83,  1 17, 
256,  297 
V.  Dusenberry,  286 
V.  Fargo,  315 
V.  Semple,  337,  342 
Little  Miami  R.  R.  Co.,  Childs  v.  255 

V.  Wetmore,  325 
Little  Rock  &  F.  S.  R.  R.  Co.  v.  Dean, 
145,  148 
V.  Harper,  257 
V.  Talbot,  325 
Taylor  v.  277 
Little  Rock,  M.  R.  &  T.  R.  R.  Co.  v. 
Corcoran,  255,  257 
V.  Talbot,  83 
Littlejohn  v.  Fitchburg  R.     R.    108, 

Live  Yankee,  The,  254 
Liverpool,  &c.  S.  S.  Co.,  Arond  v.  253, 
289 

Baldwin  v.  115,  206 

Mehrbach  v.  271 

Phoenix  Ins.  Co.  t/.  83,  189,  197, 

319 

Re  Petition  of,  61 

Redmonds  v.  331,  335 

Steers  v.  107 

Taylor  v.  218,  341 

Thompson  v.  333 
Livingston,  Fibel  v.  231 
Lloyd  V.  Guibert,  7,  188.  192 
Lockhart,  Toledo,  &c.   R.   R.   Co.  v. 
282,  284 


Lockwood,  Erie  R.  R.  Co.  v.  235 

Railroad  Co.  v.  83,  92,  108,  202, 
346 
Loeb,  Adams  Exp.  Co.  v.  261 
Logan  V.  Hannibal  &  St.  Jo.  R.  R.  Co. 

159 
Louisville,  &c.  R,  R.  v.  1 54, 155, 

173 
V.  Mobile  Trade  Co.  222 
Logwood  V.  Memphis  &  C.  R.  Co.  153 
London  &  N.  W.  R.  R.  Co.,  Crouch 
V.  130,  210,  211 
Henderson  v.  \2\ 
McCance  z/.  100,  115 
Radley  z/.  218 
London  &  S.  K.  Docks,  Scott  v.  260 
London  &  S.  W.  Railway  Co.,  Button 
2/.  325 
V.  James,  42 
Marriott  v.  130,  131 
London,  &c.  R,  R.  Co.,Harrisonz'.  100 
Long  V.  N.  Y.  Central  R.  R.  Co.  222, 

226,  240 
Long  Island  R.  R.,  Browning  z/.  127, 
240,  241 
Nelson  v.  174 
Stoddard  v.  87 
Werle  v.  159,  161 
Willis  z/.  155 
Long  Island  Trans.  Co., Re,  26,  38,  39 
Loomer,  Derwort  v.  76,  233,  240 
Lord  V.  Good  all  Co.  32 
V.  Hazeltine,  18 
V.  Steamship  Co.  8,  32,  39 
Lorillard,  Palmer  v.  1 1 
Lorillard  Fire  Ins.  Co.,  Bryce  v.  228 
Loring  V.  Aborn,  141 
Lottawanna,  The,  9 
Loughlin  v.  State,  30 
Louisiana,  The,  342 

Mendelsohn  v.  327,  329 
Louisville  &  N.  R.  R.  Co.  v.  Adams, 

173 
Baker  v.  105 
V.  Brownlee,  84 
Burke  v.  176 
Dillard  v.  227,  231 
McClelland  v.  173 
Meyer  v.  271 
Rhodes  v.  103 
Smitha  t/.  126 
Louisville,  &c.  R.  K.v.  Campbell,  282, 

283 
V.  Fleming,  132,  139,  140,  176 
V.  Garrett,  175 
V.  Harris,  141,  176 
V.  Hedger,  91,  105.  251 
V.  Katzenberger,  162 


XXX 


TABLE  OF  CASES. 


Louisville,  &c.  R.  R.  v.   Logan,   1 54, 

155,  173 

7>.  Maybin,  120 

V.  Oden,  79,  83,  117,  256,  333 

Owen  V.  125,  129,  215,  282 

Rawitzky  u.  142.  143,  144 

V.  Sherrod,  1 17 

V.  Tient,  102 
Louisville,  C.  &  L.  R.  R.  Co.  v.  Sulli- 
van, 173 
Low,  Central  Line  v.  297 
Lowe  V.  Moss,  309 

V.  Richardson,  317 
Lowel,  City  of,  Hildreth  v.  59 
Lowell  Wire  Fence  Co.  v.  Sargent,  84, 

284 
Lowrey  v.  Russell,  93,  246 
Luckenback,  The,  54 
Ludwick,  Lewis  z/.  312 
Lukez/.  Lyde,  4,  13, 
Lupe  V.  Atlantic  &  P.  R.  R.  84 
Lyde,  Luke  v.  4.,  13 
Lydian  Monarch,  The,  118 
Lynch  v.  Metropolitan  Elevated  R.  R. 

140,  169,  177 
Lynx,  The,  v.  King,  308 
Lyon,  Gowdy  v.  289,  290 

Pitts.  St.  L.  R.  R.  Co.  V.  162 

V.  Wells,  31 


McAndrew  ■z/.  Whitlock,  331,  336 
McArthur,  Miss.,  Mobile  &  O.  R.  Co. 
V.  160 
V.  Sears,  318 
McCall  z/.  Brock,  108,  253,  310 
McCamber,  Ames  v.  201 
McCance  v.  London   &  N.  W.  R.  R. 

100,  115 
McCannz/.  B.  O.  R.  R.  284 
McCarthy  v.  Terry,  347 
McCartney,  Hibler  v.  324 
McCarty  v.  N.  Y.  &   Erie  R.  R.  Co. 

332 
McCaugan,  Heirn  v.  107 
McClanahan,  Missouri  Pacific  R.  Co. 

V.  134,  138 
McClellan.  Central  R.  R.  Co.  v.  iii 
McClelland  v.  Louisville,  N.  A.  &  C. 

R.  Co.  173 
McCloskey,  Penn.  R.  R.  Co.  v.  85,  157 
McClure  v.  Phila.  W.  &  B.  R.  R.  143, 

148,   171 
McCorquedale,  Gulf  &  C.   R.   R.  Co. 

V.  301 
McCoy  V.  The  K.  &  D.  M.  R.  Co.  98 
McCranie  v.  Wood,  312 
McCroy,  Hosea  v.  248 


McCune  v.  Burlington,  &c.  R.  R.  Co. 

115,  206,  248 
McCurdy,  Georgia  R.  &  B.  R.  Co.  v. 

166 
McDaniel,  Baugh  v.  285 

V.  Chicago,  &c.  R.  R.  Co.  188, 

235 
McDonald  and  Wife  v.  Chic.  &  N.  W. 

Ry.  Co.  78 
McDonald,  Clark  z/.  98 

Western  R.  R.  v.  284 
McDonough,  Mich.  S.  &   N.   Ind.  R. 

R.  Co.  V.  105 
McElroy  z/.  Nashau  &  Lowell  R.  R,  78 
McFadden  v.  Mo.  Pacific  Ry.  Co.  109 
McGinnis  v.  Mo.  Pacific  Ry.  Co.  166 
McGown,  Gulf,  &c.  R.  R.   Co.  v.  Su 

85,  88,  100 
McGrath,  Patton  v.  240,  324,  326 
McGregor  v.  Kilgore,  337,  342 
McGuire  v.  The  Golden  Gate,  322 
McKee  v.  Owen,  162 
McKinney  z/  Jewett,  218,  333,  334 
McKown,  Malpica  z/.  185,  189 
McMahon  v.  Macy,  222,  225 
McManus   v.   Lancashire,  &c,   R.  R. 

Co.  78,  131,  235 
McMaster  v.  Penn.  R.  R.  Co.  244 
McMechan,  Colt  v.  298 
McMillan  v.  Mich.    S.  &    Ind.  R.   R. 

91,  240,  241,  244.  284 
McNicholl  V.  Pacific  Exp.  Co.  128 
McRae  v.  Wilmington,  &;c.  R.  R.  130,^ 

178 
Mackay,  Allen  v.  62 
Mackey,  Mo.  Pac.  R.  R.  Co.  -v.  86 
Mackie,  St.  Louis,  A.  &  T.  R.  Co.  v. 

154,  166,  169,  230 
Mackill,  Hill  V.  79 
Nills  v.  306 
Macklin  v.  N.  J.  Steamboat  Co.  233, 

243 
Macy,  McMahon  v.  222,  225 

V.  Wheeler,  36 
Madan  v.  Sherrard,  225 
Maddan,  Russell  v.  200 
Madison  &  Ind.  R.  R,,  Gillenwater  ?/. 

107 
Maggie  Hammond,  The,  i 
Maggie  M.,  The,  257 
Maghee  v.  Camden   &  Amboy  R.  R. 

237,  262,  281 
Magnin  v.  Dinsmore,  93,  94,  117,  118, 

119,  120,  208,  211,  227,  234 
Mahon  v.  Blake,  214 

V.  The  Olive  Branch,  253,304 
Maine  C.  R.  R.,  Blumenthal  v.  2io 
Maine  S.  S.  Co.,  Wells  v.  316 


TABLE  OF  CASES. 


XXXI 


Malcolm,  Cole  v.  338 

Malek  Adhel,  The,  46 

Mallory,  Goddard  v.  236 

Malone  v.  Boston  &  Worcester  R.  R. 

264 
Malpicaz/.  McKown,  185,  189 
Manchester,  &c.  R.  R.  Co.,  Austin  v. 

92,  235 
Manchester  &  L.  R,  R.,  Butler  v.  140 

Swan  V.  134,  138,  176 
Manchester,    S.   &  L.    R.  R.    Co.   v. 
Brown,  86 
Brown  v.  91 
Manf.  Co.,  R.  R.  Co.  v.  263,  284 
Manhattan  Oil  Co.  v.  Camden  &  Am- 

boy  R.  R.  278,  281,  284 
Manhattan  R.  R.,  Graville  v.  155,  156 
Manitoba,  The,  70 

Mann  et  al.  v.  Birchard  et  al.  87,  222 
Manning,  Chicago,  B.  &  Q.  R.  R.  Co. 

258,  296,  308 
Mansfield,  Miller  v.  331 
Maples   V.  N.  Y.  &  N.  H.  R.  R.  140, 

174 
Marckwald  v.  Oceanic  Steam  Nav.  Co. 

236,  259,  305 
Marcus,  Cincinnati,  &c.  R.  R.  v.  207 
Marcy,  Township  of  Elmwood  v.  200 
Maria  &  Elizabeth,  The,  38,  67,  70,  71 
Marianna  Flora,  The,  16 
Markham  v.  Brown,  1 57 
Marks,  Atkinson  ^'.  317 
Watson  V.  49,  63 
Maroney  v.  Old  Colony  R.  R.  242 
Marquette  v.  Chicago  &  N.  W.  R.  R. 

Co.  151 
Marquette,  H.  &  O.  R.  R.  Co.,   Con- 
don V,  283 
Frederick  v.  169 
Marriott  v.  London  &  S.  W.  R.  R.  1 30, 

131 
Marsh  v.  Blyth,  301 
V.  Home,  255 
Stone  V.  347 
Marshall  v.  Boston   &  A.  R.  R.  Co. 
141 
V.  Ins.  Co.  318 
V.  Murgatroyd,  192 
V.  N.  Y.  Central  R.  R.  104 
V.  St.  Louis,  K.  C.  &  N.  R.  Co. 
166 
Martha,  The,  288,  289,  337 
Martin,  The  D.  R.,  157 
Martin  v.  Cole,  269 
Mary  Belle  Roberts,  The,  Speyer  v. 

262 
Mary  Lord,  The,  53,  54 
Marx  V.  Britannia,  The,  255 


Maslin  v.  Baltimore  &  O.  R.  R.  Co. 

98,  106 
Mason  v.  Gainsbury,  338 
Matthews  v.  Howard  Ins.  Co.  304,  306 

Wallace  v.  230 
Matthiessen  &  W.  S.  Ref.  Co.  v.  Gusi, 

291 
Mauritz  v.  N.  Y.,  Lake  Erie  &  W.  R, 

Co.  264 
Maving  2/.  Todd,  114 
Maxwell,  Lawrence  v.  246 
May  Queen,  The,  275 
Mayail  v.  Boston  &  Maine  R.  R.  243 
Maybin,  Louisville  &c.  R.  R,  v.  120 
Mayor,    &c.  of  Jersey  City,   State  v 

59 
Mead  v.  Beale,  14 

Smith  V.  184 
Meagher,  Garey  v.  248 
Mechanics'  Bank  v.  Gordon,  212 
Medina  v.  Hanson,  298 
Mehrbach  v.   Liverpool  G.  W.  S.  Co. 

271 
Meletia,  The,  Hatton  v.  190 
Memphis  &  Charleston  R.  R.  v.  Ben- 
son, 151,  159 

Brown  v.  151,  157,  158 

V.  Chastine,  171 

V.  Holloway,  126 

Reeves  v.  260 
Memphis.  &c.  R.  R.,  Evans  v.  154 

Hall  V.  142,  168 

Logwood  •z^.  1 53 
Memphis  Ins.  Co.,  Garrison  v.  302 
Mendelsohn  z/.  The  Louisiana,  327,  329 
Mercantile  Mut.  Ins.   Co.  v.  Calebs, 

339 

Gabbri  v.  240 
Merchants'  Bank,  N.  J.  Steam  N.  Co. 
V.  76,  82,  227,  234,  260 

N.  Y.  Steamboat  Co.  v.  12 
Merchants'  Desp.  Trans.  Co.,  Bancroft 
V.  284 

V.  Bloch,  85,  90 

Block  V.  286 

V.  Bolles,  206,  279 

V.  Cornforth,  270 

V.  Joestings,  275 

V.  Kahn,  236 

V.  Leysor,  228 

V.  Moore,  331,  332 

Robinson  v.  93 

Sheltin  v.  271,  275 

Talbot  V.  184 

Weil  V.  284 

Wilde  V.  274 
Merch.  M.  Tran.  Co.,  North  v.  y^i 
Merch.  St.  Co.,  Bonner  v.  308 


XXXll 


TABLE  OF   CASES. 


Merch.  Traders'  Ins.  Co.,  Carstairs  v. 

340 
Merchants'  Wharf  Assoc,  v.  Wood, 

219,  300 
Merril,  Airey  v.  302 

Chicago  &  N.  W.  R.  R.  Co.  v. 
178,  233 
Merrit  v.  Earle,  219,  298 

V.  Old  Colony  &  Newport  R. 
R.  217 
Methodist  Prot.  Church  v.  Baltimore, 

59 
Metropolitan  Elevated  R.R.,  Lynch  v. 

140,  169,  177 

Metz  V.  Buffalo,  C.  &  P.  R.  R.  112 

Meyer  2/.  Harnden's  Exp.  Co.  275 

Louisville  &  Nashville  R.  R.  v. 

271 

IJ     PcCK     266 

Meyers  v.  Wabash  &  St.  L.  R.  R.  88 

Wolfe  V.  267 
Michaels  v.  N.  Y.  Central  R.  R.  236 
Michigan  Cent.  R.  R.  Co.  v.  Boyd,  270 

Cahn  V.  243 
V.  Carrow,  207 

V.  Curtis,  104,  245 

Feige  v.  228 

V.  Harris,  265 

Kelsey  v.  179 

Kuter  v.2\\ 

V.  Mineral  Springs  Mfg.  Co.  263 

Moore  v.  336 

Myrick  v.  98,  201,  264,  284,  285 
Michigan,  The,  Carr  v.  342 
Mich.  S.  &  N.  Ind.  R.  R.  Co.,  Bissell  v. 
182 

V.  Heaton,  83,  92 

V.  McDonough,  105 

McMillan  v.  91,  240,  241,  244, 
284 

Mills  V.  282,  283 
Middlesex  R.  R.,  Vinton  v.  155 
Milan,  The,  44 
Miles,  Le  Breton  r/.  185 

Westchester  &  Phila.  R.  R.  Co. 
V.  152 
Miletus,  The,  300 
Milford,  The,  15,  17 
Miller,  Atwell  v.  60 

Austin  V.  14 

Burke  v.  243 

Great  Western  Ry.  v.  171,  172 

V.   Hannibal  &  St.   Jo.  R.  R. 
292,  296 

V.  Mansfield,  331 

Penn.  R.  R.  Co.  v.  253,  259 

V.  Race,  347 

V.  Steam  Nav,  Co.  284,  302 


Miller  7/.  Tiffany,  185,  186 

Milliken  v.  Pratt,  196 

Milliman  v.  N.  Y.  Central  &  H.  R.  R. 

Co.  154 
Mills  V.  Mich.  Cent.  R.  R.  282,  283 
Miln,  Rowland  v.  313,  336 
Milnor  v.   N.   Y.  &  N.  H.  R.  R.  Co. 

142 
Miltimore  v.  Chicago  &  N.  W.  R.  R. 

Co.  216 
Milwaukee  &  N.  R.  R.,  Annas  z/.  85, 

92,  108 
Milwaukee  &  St.  P.  R.  R.,  Pierce  v. 
no 
Wood  V,  282 
Milwaukee,  &c.  R.  R.,  Conkey  v.  282 
Kirst  V.  253 
Yorton  v.  145 
Mineral     Springs    Mfg.    Co.,    Mich. 

Cent.  R.  R.  v.  263 
Minneapolis  &  St.  L.  Ry.  v.  Herrick, 
86 
Ortt  V.  284 
Minter  v.  Pacific,  &c.  R.  R.  242 
Minturn,  Lawrence  v.  216,  299,  311 
Miss.  &  Mo.  R.  R.  Co.,  Angle  v.  248, 

253 
Miss.,  Mobile  &  O.  R.  R.  Co.  v.  Mc 

Arthur,  160 
Missouri,   Kan.  &  T.  R.  R.,  Ryan  v. 

196,  259 
Missouri  Pac.  Ry.  Co.,  Aiken  v.  177 
Beeson  v.  271 
Carroll  v.  84,  88 
V.  Cornwall,  85,  104 
V.  Fagan,  85,  98,  102,  124,  246, 

269 
V.  Harris,  85,  98,  100,  123,  127 
V.  Ivey,  85,  86,  109,  no,  186 
V.  McClanahan,  134,  138 
McFadden  v.  109 
McGinnis  v.  i66 
V.  Mackey,  86 
V.  Ross,  213 
Sprague  ^'.  125 
V.  Vandewater,  84,  91 
White  t'.  315 
Missouri  River  Packet  Co.,  Gray  v. 

no.  n3 
Missouri  S.  S.  Co.,  Re^  86,  189,  194, 

196 
Mitchell  V.  Georgia  R.  R.  99 

Illinois  Cent.  R.  R.  v.  284 
Wooley  V.  301 
Mobile,  &c.  R.  R.  Co.  v.  Hopkins,  88, 
107,  n7,  282 
V.  Jarboe,  257,  258 
V.  Jurey,  338 


TABLE   OF   CASES. 


XXXlll 


Mobile  Trade  Co.,  Grey's  Executors 
V.  259 
Logan  ?y.  222 
Mohawk,  The,  310 
Mohler,  The,  306 
Montana,  The,  83,  189,  197,  198,  256. 

319,  346,  348 
Monteath,  Parsons  v.  87 
Montford,  Chicago  &  N.  W.  R.  R.  Co 

V.  229,  274 
Montgomery,  Kirtland  z'.  112 

Lavvrensburg   &    Upper   Miss. 

R.  R.  7/.  157 
V.  The  "Abby  Pratt,"  290 
Montgomery,  &c.  R.  R.  Co.  v.  Ed- 
monds, 216,  235 
Moon,  Southern  Exp.  Co.  v.  84,  118 
Moore,  Am.  Trans.  Co.  v.  250,  251 

V.  Am.  Trans.  Co.  23,  38,  250 
Charleston  &  Savannah  R.  R. 

V.  210 
V.  Evans,  87,  221,  229 
Matter  of,  345 
Merchants'  Desp.  &  Trans.  Co. 

^-  33 1)  332 
V.  Mich.,  &c.  R.  R.  Co.  336 
V.  Pitts,  198 
Morewood  v.  Pollock.  24 
Moriarty  v.  Harnden's   Ex.    Co.   115, 

275 
Morning  Glor)',  The,  Thomas  v.   218, 

231 
Morris,  Hunt  v.  303 

Texas  Cent.  R.  R.  v.  127 
Morris  &  Essex  R.  R.  v.  Ayers,  159, 

332 
Morrison    %>.    Davis,    237,    269,    303, 
308 
111.  Cent.   R.  R.  Co.  v.  86,  92, 

99 
V.  Philips  &  Colby  C.  Co.  230 
Morse,  Campbell  v.  236 

Waring  v.  299 
Morton,  Vose  v.  240 
Morville,  Great  Northern  Railway  Co. 

V.   100 
Moses  V.  B.  &  M.    R.  R.  Co.  94,  114, 

233.  331 
Mosher,  Happy  v.  59 

V.  St.  Louis,  L  M.  &  T.  R.  Co. 
164 
Moss,  Chicago,  &c.  R.  R,  v.  235,  249, 
258 
V.  Johnson,  155 
Lowe  V.  309 
Moulton  V.  St.  Paul,  &c.  R.  Co.   106, 

118 
Moyer,  Union  Pac.  R.  R.  v.  334 

C 


Mt.  Sterling,  Curry  v.  59 

Mt.   Vernon  Co.,  Ala.   G.    R.   Co.  v. 

283 
Mullen  V.  St.  John,  259 
Muller  V.  Cincinnati,  H.   &   D.  R.  R. 

223 
Mulligan  v.  111.  Central  R.  R.  223 
Mundy,  Indiana  Cent.  R.  R.  v.  83 
Murdock  v.  Boston  &  A.  R.  R.  Co. 

167 
Murgatroyd,  Marshall  v.  192 
Murphy^.  Western  &  A.  R.  R.  153 

V.  Union  Railway  Co,  155 
Muscogee,  Redd  2/.  219 
Muser  z^.  Holland,  117 
Mutual  Security  Ins.  Co.,  Van  Natta 

^-  339 
Myers  v.  St.  Louis  &  W.  R.  Co.  88 
Mynard  v.  Syracuse,  &c.  R.  R.  78,  98, 

103,  234 
Myrick,'  Gaither  v.  337 

V  Michigan  Central    R.  R.  98, 
201,  264,  284,  285 
Myrtle,  St.  Louis  &  S.  E.  R.  R.  v.  139 


Nanson  v.  Jacob,  287 
Napier,  Cubbedge  v.  201 
Narragansett  R.  R.,  Ellis  v.  153 
Narragansett  S.    S.  Co.,  Standish  v 

140 
Nashua  &  Lowell  R.   R.,  McElroy  v. 

78 
Nashville  R.  R.,  Adams  v.  200 

V.  Carrol,  176 

v.  Estes,  312 

V.  Nowlin,  176 
Nathaniel  Hooper,  The,  309,  310 
National  Bank,  Potter  v.  64 
National  Docks  R.   R.  Co.  v.  Central 

R.  R.  131 
National  S.  S.  Co..  Abbot  v.  292 

Arnold  v.  247 

Dyer  t/.  9,  71 

Nelson  v,  328,  329 

Tathersall  v.  82 
Naumkeag  S.  C.  Co.,  Buckley  v.  310 
Navigazione  Gen.  It.,  Stevens  v.  198, 

301,  324 

Naylor  v.  Baltzell,  43 
Shepard  v.  294 
Naymann,  Penn.  R.  R.  v.  261 
Nearing,  Rockwell  v.  59 
Nederland  v.    Peninsular  &  Oriental 

S.  N.  Co.  43 
Nellist/.  N.  Y.  C.  R  R.  Co.  134.  136 
Nelson  v.  Hudson  R.  R.  275,  277 

Illinois  Cent.  R.  R.  Co.  v.  154 


XXXIV 


TABLE  OF   CASES 


Nelson  v.  L.  I.  R.  R.  Co.  174 

V.  Nat.  S.  S.  Co.  328,  329 
V.  Stephenson,  288,  290,  293 
V.  Woodruff,  266 
Neresheimer,  Dinsmore  v.  87 
Netherlands  India  S.   S.   Co.,  Bank  of 

India  v.  X99,  234 
Nevada,  The,  17 
Nevins  v.  Bay  State  S.   S.  Co.  230, 

241 
New  Bedford  Cordage  Co.,  Coombs  v. 

80,  81 
New    Bedford,    &c.   Steamboat  Co., 

Simmons  v.  78 
New   Brunswick    Steamboat    Co.   v. 

Tiers,  236 
New  England  Marine  Ins  Co., Hazards' 

Adms,  V.  301 
New  England  Ins.   Co.,  Copeland  v. 
304 
Dole  V.  312 
Hagar  v.  304 
New  Haven  &  Northampton  R.  R., 

Smith  7/78,  98 
New  Jersey,  The,  301 
New  Jersey  Railroad,  Ripley  v.  140 
New  Jersey  Steamboat  Co.,  Blanchard 
V.  64 
V.  Brockett,  172 
Caldwell  v.  259 
Cleveland  v.  107 
Macklin  v.  233,  243 
Zinn  V.  331 
New  Jersey  Steam  Nav.  Co.,  Dorr  v. 
76.  87,  221,  227,  233 
Hale  V.  86,  184,  233 
V.  Merchants'  Bank,  76,  82,  222 

New   London   W.   &  P.    R.   R.  Co. 

Crocker  z/.  133,  134,  138,  325 
New  Orleans,  The,  234,  255 
New  Orleans,  &c.  R.   R.,  DeLucas  v 
134,  135.  139 
V.  Faler,  235 
V.  Hurst,  107,  244 
V.  Statham.  176 
New  Orleans,  J.  &  G.  N.  R.  R.,  Peters 

V.  105,  215 
N.  O.,  Jackson  R.  R.  Co.,  N.  O.  Mut. 

Ins.  Co.  V.  84 
N.  O.  Mut.  Ins.  Co.  v.  N.  O.,  Jackson 

&c.  R.  R.  Co..  84 
N.  O.,  M.  C.   R.   R.   Co.,  Higgins  v. 

86,  108 
New  World,  The,  Fay  7/.  115 

King,  V.  79,  82,  113 
New  York.  Alexandria,  G.  &  W.  S.  S. 
Co.,  Viner  v.  214 


New  York   Bal.     Dry    Dock   Co.    v. 

Howes,  261 
N.    Y.    Central   R.    R.,  Auerbach   v. 
144 
Barker  v.  160 
Bills  V.  102,  306 
Bissell   V.    86,    87,    107,     109, 

221 
Chase  v.  134 
Cofifin  V.  270 
Cragin  v.  87,  98 
Degraff  v.  80 
Denny  v.  145,  237 
Dunson  v.  236,  289 
Ebye  v.  293 
Fraloff  z/.  116,  118 
Green  v.  284 
Hamilton  v.  148 
Harvey  v.  80 
Hayes  v.  174 
Hinkley  z/,  241,  268,  281 
Hoffman  v.  321 
Irwin  V.  250 
Isaacson  v.  93 
Johnson  v.  93,  245 
Jones  V.  80 
Kenney  v.  94 
Kenyon  v.  21Z 
Laning  v.  80 
Long  zt.  222,  226,  240,  266 
Marshall  v.  104 
Michaels  v.  236 
Millman  v.  154 
Nellis  V.  134,  136 
Nicholls  V.  234 
Obby  V.  293 
O'Brien  v.  175 
Perkins  v.  86,  88 
Porter  v.  134,  138 
Pouchor  IK  87 
Rintoul  V.  83,  339,  341 
Robson  V.  174 
Schiff  t/.  270,  285 
Smith  V.  y-j.  79,  86,  120 
Squire   v.    100,    117,    217,  275, 

276 
V.  Standard  Oil  Co.,  303,  326 
Tanner  v.  82 
Thorpe  v.  90 
Tierney  v.  246 
Townsend  v.  168,  169 
Ulrich  V.  90,  164 
Waterbury  v.  106 
Wells  V.  86,  88 
Wilson  V.  81 
Wright  V.  30 
N.  Y.,  C.  &  St.    L.   R.  Co.  V.  Doane, 
154 


TABLE  OF  CASES. 


XXXV 


N.  Y.  Elevated  R.  R.,  The,  59 

Weston  V.  79 
N.  Y.  &  Erie  R.  R.  Co.,  Hunt  v.  284 
N.  Y.  &  Harlem  R.  R.,  Baulec  v.  80 

Edgerton  v.  157 

Langworthy  v.  90,  in 
N.  Y.,  Lake  Erie  &  W.    R.  R.    Co., 
Ellis  V.  80 

Seyboldt  7/,  112 
N.  Y.  Sleeping  Car  Co.  v.  Lewis,  76, 
84,  230 

V.  Wing,  76 
N.  Y.  &  N.  E.  R.   R.   Co.,   Davies  v. 
194 

Griswold  v.  107 
N.   Y.  &  N.  H.  R.  R.,  Carroll  v.  157, 
158 

Colegrove  •z^.  155 

Coleman  v.  172 

Downs  V.  140,  174,  238 

Hodgdon  v.  244 

Maples  V.  140,  174 

Milner  «/.  142 

Nolan  V.  \^\ 

V.  Schuyler,  23 

Weeks  v.  207 
N,  Y.,  Mex.  S.  S.  Co.,  Viner  v.  214 
N.  Y.  Mails.  S.  Co.,  Spaids  z/.  314 
N.  Y.,  O.  &  W.  R.  R.,  Guy  v.  175 
N.  Y.,  Prov.  &  Boston  R.  R.,  Law- 
rence V.  86,  115,  252 

Stowe  V.  331 
N.   Y.  Steamboat  Co.  v.  Merchants' 

Bank,  12 
Newark,  The,  298 
Newburger  7/.  Howard,  117 
Newby,    Southern    Exp.    Co.  v.  221, 

250 
Newell  V.  Smith,  284 
Newhall,  Transp.  Co.  v.  76 

Western  Transp.  Co.    v.   114, 
233.  250 
Newmark,  Eaton  v.  282,  292 
Nevvstadt  v.  Adams,  115,  252 
Newton,  Freeman  v.  220,  264 
Niagara,  The  Propeller,  v.  Cordes,  307, 

311 
Niagara  Fire  Ins.  Co.,  Steen  v.  123 
Nicholas  v.  N.  Y.  Central,  &c.  R.  R. 

234 
Nicholls  V.  Bridgeport,  59 
Nichols  V.  Eaton,  347 

Kansas  Pac.  R.  R.  t/.  99 
Nickerson,  Pope  7/.  188,  189,  193 
Nickless,  Ohio  &  Miss.  R.  Co.  v.  108, 

112 
Nieman,  Russell  v.  318 
Nill,  Sturgeon  v.  299 


Nills  V.  Mackill,  306 

Niolan,  Smyrl  v.  253,  296,  298 

Nith,  The,  266,  289,  307,  327 

Nix,    South   Carolina   R.  R.    Co.    v. 

175 
Nixon  V.  Roberts,  70 
Noch,  Adams  Exp.  Co.  v.  227 
Nolan  V.  N.  Y.,  N.  H.  &  H.  R.  R.  Co. 

151 

Nolton  V.  Western  R.  R.  107 
Norfolk   &    W.    R.   R.  Co  v.   Irvine, 

177 
North  V.  Merch.  M.  Transp.  Co.  337 
North  Carolina  R.   R.,  Smith  v.  120, 

256 
North   German    Lloyd,   Heye    v.    24, 

26 
North  Penn.  v.   Commercial    Bk.    of 

Chicago,  244.  337 
North  Staffordshire  R.    Co.,    Peek  v. 

75,86,  131,  235 
North  Star,  The,  43 
Northeast  Screw  Co.,  Bliven  v.  199 
Northeastern  Ins.  Co.,  Dole  t/.  312 

Hagar  v.  304 
Northeastern  Marine  Ins.  Co.,  Cope- 
land  «/.  31,  304 
Northeastern    R.    Co.,    Hammond   v. 
109,  113 
Porcher  ?/.  313 
Northern  v.  Williams,  217 
Northern   Central  R.    R.,    Painton  v. 
80 
Tarbell  v.  167 
Northern  Pacific   Exp.  Co.,  Bennis  v. 
129 
Hartwell  v.  228 
Northern  Pac.  R.  Co.,  Dunlap  v.  154 

Poole  V.  136 
Northern  R.  R.  v.  Page,  141,  178 
Northern  Transp.  Co.,   Chisholm,  33, 
42,  50 
Falvey  v.  262 
Hoadley  v.  237 
Van  Schaack  v.  230 
Northumbria,  The,  70 
Northwest  Union  Pac.   Co.,  Coger  v. 

153 
Norton,  Bork  v.  309 

Brackett  v.  184 

Prichard  7A  185,  195,  196 
Norway,  The,  298 
Norway  Plains  Co.  v.  Boston  &   Me. 

R.  R- 331, 332 

Norwich,  The  City  of,  40,  55,  60,  62, 

63,  65,  68,  72,  83,  117 
Norwich  &  N.  Y.   Trans.  Co.,  In  re 

Petition,  39,  45,  60,  63 


XXXVl 


TABLE   OF  CASES. 


Norwich  &  Worcester  R,  R,  Co.,  Bur- 
roughs V.  266 
Norwich  Steamboat  Co.,  Simpkins  v. 

245 
Norwich  Trans.  Co.,  Place  v.  7,  67 

V.  Wright,  7,  27,  53,  62,  67 
Nowlin,  Nashville  R.  R.  Co  ^'.  176 

Hollister  v.  76,    114,  207,  233, 
241 
Nuzum,  Pittshurgh  &  St.  L.  R.  Co.  v. 
159,  166 


O'Brien  t/.   Boston  &  W.  R.  R.  Co., 

174 
V.  N.  Y.  Central  R.  R.  175 
O'Connor?/.  Adams,  81 
O'Donnell  v.  Alleghany  V.  R.  R.  Co., 

154 
O'Hara.   Buffalo,  <S:c.    R.   R.   v.   107, 

109 
O'Neill,  Hershey  v.  322 

V.  Keokuk,  &c.  R.  R.  342 
O'Rourke  v.  Chicago,  &c,  R.  R.  214 

V.  Tons  of  Coal,  267 
Oakey  v.  Gordon,  281,  282 
Oaklev,  Law  Assn.  Co.  v.  338 
Obey,' The,  37,  38 
Ocean  S.  N,  Co.,  English  v.  295 
Ocean  Wave,  The,  309 
Oceanic  S.  N.  Co.,  Carlson  v.  49 

Levinson  v.  10,  57,  58 

Marckwald  v.  236,  259,  305 

Wheeler  v.  49 
Oceanus,  The,  69 
Oden,   Louisville   &   Nashville  R.  R. 

Co.  r/.  79,  83,  117,  256,  333 
Ohio,  Wilson  v.  323 
Ohio   &   Miss.  R.  Co.  v.  Applewhite. 

159 

Faulkner  2/.  153,  179 

V.  Hatton,  166 

V.  Nickless,  108,  112 

V.  Selby,  83,  88.  92,  108 

V.  Svvarthout,  160 
Oil  Creek  &  All.  R.  Co.  ?7,  Clark,  178 
Old  Colony  R.  R.,  Bates  v.  89,  109 

Maroney  v.  242 

Merrit  z/.  217 

Sullivan  v.  154,  177 

V.  Tripp,  157 
Olbers,  The,  290,  328 
Olcott  V.  Fond  du  Lac,  200 
Olive   Branch,    The,    Mahon   v.  253, 

304 
Ontario  S.  Co..  Rice  v.  35 
Oppenheimer  TV.  Denver  R.  Co.  163 

V.  U.  S.  Exp.  Co.  114,  117,  208 


Orange  Co.  Bank  v.  Brown,  107,  114, 

207 
Oranmore,  The,  198 
Oriflamme,  The,  289 
Ormsby  v.  Union    Pac.   Ry.   Co.   126, 

263 
Orndorff,  Adams  Exp.  Co.  v.  84 
Ortt,  Minneapolis  &  St.  G.  Ry.  Co.  v. 

284 
Osborn,  Thomas  v.  1 1 
Osgood  V.  Bauder,  185 
Overland,    &c.  E.xp.    Co.   v.    Carroll,. 

246 
Overton,  Stated".  146,  159,   178 
Owen,  Day  v.  1 52,  1 58 

111.  Cent.  R.  R.  Co.  v.  302 

^'.  Louisville  &  N.  R.   Co.    125,, 

129,  215,  282 
McKee  v.  162 
Owens  V.  B.  &  O.  R.  R.  86 

V.  Kansas  City,  St.  J.  &  C.  B. 
R.  R.  176 
Owings  V.  Hall,  64 
Oyster  Bay    5:    H,   Steamboat    Co , 

Barney  v.  157 
Overland  Mail  &  Exp.   Co.  v.  Carroll,. 
246 


Pacific,  The,  227 

Seller  2/.  85,  225.  276,  289,  292 
Pacific  Exp.  Co.  v.  Darnell,  123 

McNichol  V.  128 
Pacific  Mail  S.  S.  Co.,  Swift  v.  286 
Pac.  R.  Co.,  Minter  v.  242 

Wyman  v.  171 
Pacific  S.  N.  Co.,  Taubman  v.  86 
Packard,  Bell  v.  196 

V.  Taylor,  297,  298,  299,  305 
Packer,  Southern  Life  Ins.  Co.  v.  17, 

168 
Packwood,  Harris  v.  114,  255 
Paddock  v.   Atchison,  T.  &  S.  F.  R. 

Co.  154 
Page,  Northern  R.  R.  v.  141,  178 
Paine  v.   Chicago,  R.  I.  &  P.  R.  Co. 

135 
Painton  v.  Northern  Cent.  R.  R.  Co. 

80 
Palmer  v.   Charlotte,  &c.  R.  R.  148, 
169 
7/.  Chicago,  B.  &  Q.  R.  R.  283 
V.  Grand  Junction  R.  Co.  98 
V.  Lorillard,  1 1 
V.  Penn.  R.  R.  Co.  80 
Palmyra,  The,  55 
Pandorf  v.  Hamilton,  301 
Hamilton  v.  305 


TABLE  OF  CASES. 


XXXVll 


Paragon,  The,  299 

Park  V.  Preston,  272 

Parker  v.  Flagg,  302 

Parkhurst,  Gloucester  Ins.  Co.  v.  304 

Parkman,  Lamb  v.  249.  329 

Parks,  Chicago,  B.  &  Q.  R.  R.  v.  133, 

135-  137,  171 

V.  Jackson,  347 
Parmelee  v.  Western  Trans.  Co.  284 
Parsons  v.  Hardy,  308 

V.  Monteath,  87 
Patapsco  Ins  Co.  v.  Coulters,  323 
Patterson  v.  Clyde,  255 

Toledo,  Peoria  &  W.  R.  R.  v. 
154,  171,  173 
Patten,  Chevellier  v.  247 

V.  McGrath,  240,  324,  326 
Paturzo  V.  Compagnie  Francaise,  329, 

330 
Paulmier,  Admr.,  v.  Erie  R,  R.  80 
Payne,  Sleade  v.  331 
Paynton,    Gibbon    v.    209,    210,    212, 

241 
Peacock,  Chicago,  &c.  R.  R.  v.  172 
Pearse  v.  Quebec  S.  S.  Co.  118,  122 
Pearson,  Alden  v.  253 
Pease  v:  D.,  L.  &  W.  R.  R.  Co.  174 
Peck,  Meyer  v.  266 

V.  Weeks.  233 
Peek  V.  North  Staffordshire  R.  R.  Co. 

75,  86,  131,  235 
Peet  V.  Chicago  &  N.  W.  R.  R.  246 
Peik  V.  Chicago  &  N.  W.  R.  R.  200. 

349 
Pendergast  v.  Adams  Exp.  Co.  224 
Pendleton  v.  Kinsley,  322 
Peninsula  O.  S.  N.  Co.  v.  Shand,  196 

Nederland  v.  43 
Penn  v.  Buffalo  &  Erie  R.  R.  102 
Pennington   v.  Phil.,  W.  &  B.  R.  R. 

Co.  108,  142,  166 
Penn.  Co.  v.  Roy,  80 
Penn.  R.  R.  Co.,  Arnold  v.  144,  172, 

173 
V.  Butler,  85 
V.  Connell,  168 
Dietrich  v.  103,  143,   146,  159, 

160,  163,  178 
"v.  Fairchild,  188 
Goldey  z/.  85 
Hall  V.  325 
Hart  V.  118,  119 
Hayman  v.  217 

V.  Henderson,  85,  88,  109,  157 
V.  Hine,  144 
V.  McCloskey,  85,  157 
McMaster  v.  244 
v.  Miller,  253,  259 


Penn.  R.  R.  Co.,  Nayman  v.  261 

Palmer  v.  80 

Powell  V.  85,  215 

Riordan  v.  loi,  260 

Rawson  v.  142,  233,  272 

Ritz  V.  100 

Sleeper  v.  185 

V.  Spicker,  178 

Stern  v.  244,  337 

Van  Kirk  v.  147 

7/.  Wentz,  147,  161 

Wertheimer  7^.  256 

Young  V.  286 
Penn.   Steam  Towing  &  Trans.  Co., 

Ashmore  v.  87 
Penobscot  &  K.  R.  R.  Co.  v.  Bartlett, 

186 
People  V.  Babcock,  105 

Chicago  &  N.  W.  R.  R.  .7/.  132, 

174 

V.  Civil- Service  Boards,  345 

V.  Common  Council,  345 

V.  Jillson,  174 
Peoria,  &c.  R.  R.,  Rosenfeld  v.  118 
Peoria  Ins.  Co.  v.  Frost,  338 
Pepper,  Hastings  v.  104 
Pereire,  The,  259,  327 
Perkins,  American  Exp.  Co.  v.   104, 
206,  208,  213 

Lake  Shore  &  M.  S.  R.  R.  Co. 
V.  105 

V.  N.  Y.  C.  R.  R.  Co.  86.  88 

Town  of  South  Ottawa  v.  200 
Perrin,  Dows  v.  288 
Perry  v.  Thompson,  224,  226,  271 
Peters  v.  New  Orleans,  &c.  R.  R.  Co. 

105,  215 
Peterson,  In  re,  282,  283 

Cox  7/.  309 
Petrie  v.  Heller,  267 
Peytona,  The,  299,  331 
Pfister  V.  Central  Pacific  R.   R.  99, 

210 
Phebe,  The,  5 

Phelps  V.  111.  Cent.  R.  R.  237,  314 
Phestigo,  The,  60 

Phila.  &  Reading  R.  R.  Co.,  Cresson 
V.  140,  179 

V.  Derby,  82,  106,  157 
Phil.  St.  P.  Co.,  Shunk  v.  332 
Phil.,  W.  &  B.  R.  R.  Co.,  Duling  v. 
159,  160,  178,  243 

Flinn  v.  83 

Johnson  7/.  108,  148,  163,  166 

V.  Koeflich,  173 

McClure  v.  143,  148,  171 

Pennington  v.  108,  142,  166 

V.  Quigley,  29 


XXXVlll 


TABLE  OF  CASES. 


Phil.,  W.  &  B.  R.  R.  Co.,  Reed  v.  247 

V.  Rice,  169 
Philleo  V.  Sandford,  215 
Phillips  V.  Earle,  206,  210,  211,  212, 
218 
V.  Edwards,  235 
Phillips  &  Colby  C.  Co.,  Morrison  v. 

230 
Phoenix  Ins.  Co.  v.  Continental   Ins. 
Co.  199 
V.  Erie  Trans.  Co.  47,  83,  118, 

339 

Ex  parte,  27 

V.    Liverpool,    &c.    S.    S.    Co. 

319 
Liverpool,  &c.  S.  S.  Co.  v.  83, 
189,  197 
Pickford,  Wyld  v.  86,  121 
Pickwick,  Brooke  v.  207,  222 
Pier  V.  Finch,  147,  265 
Pierce,  Lake  Shore  &  M.  S.  R.  Co.  v. 
166 
V.  Milwaukee  &  St.  Paul  R.  R. 

no   ' 
V.  Randolph,  132 
Pilkington,  Scott  v.  188 
Pine  Grove  v.  Talcott,  14 
Piper,   St.   L.,  K.  C.  &  N.  R.  R.  v. 

84 
Pipes,  Twelve  Hundred,  310 
Pitcher,  Jones  v.  299,  301,  305,  306 
Pittard,  Forward  v.  302 
Pitts,  Moore  v.  85,  104.  198 
Pittslaurgh,   &c.    Ry.   Co.    v.   Hazen, 

316 
Pittsburgh,  &c.  R.  R.  Co.,  Bartlett  v. 
316 
Powell  V.  142 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Hollo- 
well,  316 
V.  Lyon,  162 
V.  Nuzum,  159,  166 
V.  Thompson,  78 
Pittsburgh,  F.  W.  &  C.  R.,  Smith  v. 

134 
Welch  V.  77,  84 
Pittsburgh,  St.  Louis  &  Cin.  R.  R.  v. 

Hennigh,  169 
Place  V.  Norwich  Trans.  Co.  7,  67 

V.  Union  Exp.  Co.  309 
Plaisted  v.  Boston,  &c.  Nav.  Co.  297, 

301 
Plant  V.  Stovall,  39 
Piatt  V.  Richmond  &  Y.  R.  &  C.  R. 

R.  Co.  256,  339 
Plymouth,  The,  27 
Pollock,  Morewood  v.  24 
Polynesia,  The,  260 


Pomeroy  v.  Ainsworth,  193 
Pond,  Andrews  v.  185,  186 
Pontius,  C,  H.  &  D.  &  D.  M.  R.  R. 

Co.  V.  84 
Poole  7/.  Northern  Pac.  Ry.  Co.  136 
Pope  V.  Nickerson,  188,  189,  193 
Poppe,  Zerega  v.  253 
Porcher  v.  Northeastern  R.  Co.  313 
Porter  v.  Chicago,  &c.  R.  R.  331 

V.   N.  Y.    Central  R.   R.    134, 

138      . 
V.  Southern  Ex.  Co.  123,  124 
Porterfield  v.  Humphreys,  loi 
Portsmouth,  The,  298,  299,  305,  306, 

307,  311 
Portsmouth,  S.  &  P.  &  E.  R.  R.  Co., 

Sager  v.  84,  222,  233.  255 
Port  Wardens  of  Phila.,  Cooley  v.  349 
Portuense,  The,  329 
Post  V.  Chicago  &  N.  W.  R.  R.  149, 
150 
V.  Koch,  316 
Tyson  v.  247 
Potter  V.  Nat.  Bank,  64 

V.  Sharp,  79 
Poucher  v.   N.  Y.  Central  R.  R.  Co. 

87 
Powell,  Fireman's  Ins.  Co.  v.  304 

V.  Penn.  R.  R.  Co.  85,  215 

V.  Pittsburgh  R.  R.  Co.  142 

Price  V.  288,  331 
Power.    Commonwealth   v.   131,    157, 

158 
Powhattan,  The,  319 
Pratt,  Milliken  v.  196 

R.  R.  Co.  V.  131,  285,  286 
Prentice  v.  Decker,  120,  263,  264 
Prentiss,  Barney  v.  232 

V.  Savage,  187 
Preston,  Park  v.  272 
Price,  Bissell  v.  243,  266,  289 

V.  Hartshorn,  295,  303 

V.  Powell,  288,  331 

V.  The  Uriel,  255 
Pritchard  v.  Norton,  185,  195,  196 
Proctor,  Boston  &  Lowell  R.  R.  Co.  v. 

H3 
Protection  Ins.  Co.,  Turner  z*.  311 
Protector,  The,  312 
Providence  &  N.  Y.  S.  S.  Co.  v.  Hill 
Mfg.  Co.  9,  22,  24.  28,  52,  53, 
54,  69,  302,  324 
Hill  Mfg.  Co.  V.  23,  29 
Knowlton  v.  22,  23,  28 
Providence   &   Stonington  S.  S.  Co.> 

Wallace  z>.  38,  42,  54 
Providence,  &c.  S.  S.  Co.,  Rounds  v. 
26 


TABLE  OF  CASES. 


xxxix 


Providence   &  Washington  Ins.   Co, 

Force  v.  5,  189 
Pullman  Palace  Car  Co.  v.  Reed,  135, 
139,  141,  247 
Williams  v.  90 
Purcell,  Southern  Exp.  Co.  v.  263 
Putnam  v.  Broadway  &  Seventh  Ave. 
R.  R.  90,  154 


Quebec  S.  S.  Co.,  Pearse  v.  118,  122 

Queen,  The,  294 

Quigley,  Philadelphia,  W.  &  B.  R.  R. 

V.  29 
Quimby  v.  Vanderbilt,  36,  142 


Race,  Miller  v.  347 

Radley  v.  London  &  N.   W.  R.  Co. 

218 
Rae,  Galena  &  Chicago  Union  R.  R. 

Co.  V.  263 
Railroad   Co.  v    Androscoggin  Mills, 
278,  285 
■   V.  Bank  of  Ashland,  185,  187 

Bennett  v.  139 

Dennick  v.  194 

V.  Fraloff,  207 

Hall  V.  338 

Hatten  v.  146 

Ins.  Co.  V.  36,  284 

V.  Lockvvood,  83,  92,  108,  202, 
346 

V.  Manf.  Co.  263,  284 

V.  Pratt,  131,  285,  286 

V.  Reeves,  237 

Sanford  v.  130 

Shaw  V.  349 

V.  Skillman.  133,  174 

V.  Stevens,  88 

V.  Varnell,  307 
Railway  Co.  v  Durkin.  78 

V.  Hamilton.  78 

Hough  V.  30 

V.  Valleley,   173 
Rajah,  The,  40 
Raleigh  &  G.  R.  Co.,  Washington  v. 

286 
Ralli  V.  Janson,  11 
Ralston  v.  The  State  Rights.  320 
Randolph  v.  Boston  &  Albany  R.  R. 
80 

Chicago  &  Alton  R.  R.  Co.  v. 

154,  159 
Pierce  v.  132 
Rankin,  Wilson  v.  323 
Ransom,  Barry  v.  269 
Rapp,  Relf  z/.  116,  211,  212 


Rathbone,  Baltimore  &  Ohio  R.  R.  v. 
87,  234 
Hooper  v.  252 
Ravvitzky  v.  Louisville  &  N.  Ry.  Co. 

142.  143.  144 
Rawson  v.  Holland,  283,  284 

V.    Penn.   R.  R.   Co.  142,  233, 
272 
Raymond,  Schwinger  •r/.  216 
Read,  Beal  v.  233,  241 
Bell  V.  80.  309 
Illinois  Central  R.   R.   Co.   v. 

81,  89,  92,  150 
V.  Spaulding,  236,  303 
Reagan.  Adams  Exp.  Co.  v.  124 
Realm,  Wentworth  v.  295 
Rebecca,  The,  5,  72,  299 
Redd  V.  Muscogee  R.  R.  219 
Redmond  z/.  Liverpool,  &c.  S.  Co.  331, 

335 

Redpath  v.  Vaughn,  298 

Reed,  Ex  parte,  345 

V.  Phila.,  W.  &  B.  R   R.  247 
Pullman  Palace  Car  Co.  v.  135, 

139'  141 

V.  U.  S.  Exp.  Co.  282 
Reeves,  Railroad  Co.  v.  237 

V.  Waterman,  302 
Regan  v.  Grand  Trunk  R.  Co.  94 
Regina  v.  Bjornsen,  204 

V.  Serva,  204 
Reid,  Denn  v.  46 
Relf  V.  Rapp,  116.  211,  212 
Reliance  Transp    Co  ,  Atwood  v.  299 
Renard  v.  Sampson,  269 
Reno  V.  Hogan,  76,  84,  337 
Revenge,  The,  Diaz  v.  321 
Reynolds,  Dial  v.  68 

Kansas  Pacific  R.   R.    Co.    v. 

255 
Rhoads,  South  Fla.  R.  R.  v.  130,  132, 

157,  172 
Rhodes  v.  Louisville  &  N.   R.  R.  103 
Rice  V.  Boston,  &c.  R.  R.  Co.  331 
V.  Hart,  201,  203,  331 
V.  Indianapolis  &  St.  Louis  R. 

R.  213 
V.   Kansas  Pacific  R.  R.    125, 

129 
V.  Ontario  S.  S.  Co.  35 
Phil.,  W.  &B.  R.  R.  Co.  v.  169 
Southern   Kansas   Ry.    Co.  v. 
168 
Rich,  Cameron  z*.  259 

V.  Lambert,  253,  329 
Richards  v.  Doe,  289 
V.  Gilbert,  306 
V.  Hansen,  31 


xl 


TABLE  OF   CASES. 


Richardson,  Bazin  v.  298,  299 
V.  Goddard,  203,  331 
Lowe  ^'.  3 1 7 
Richmond   v.   Union   Steamboat  Co. 

244 
Richmond,  &c.  R.  R.  v.  Ashby,  160 
Richmond  Turnpike  Co.,  Vanderbiit 

V.  320 
Richmond.  Y.  R.  &  C  R.  R.  Co  ,  Piatt 

V.  256,  339 
Riegel,  Union  R.  R.  &  Transp.  Co.  v. 

268 
Riley,  Roberts  v.  251,  254 
Rinard,  Indianapolis  R.  R.  v.  138 
Rintoul  V.  N.  Y.  Cent.  R   R.  83,  339, 

341 
Riordan.  Penn.  R.  R.  v.  loi,  260 
Ripley  v.  N.  J.  R.  R.  140 
Ritz  V.  Penn.  R.  R.  Co.  100 
Rives,  Knox  v.  113 
Rixford  7/.  Smith,  98,  215 
Roach,  Atchison,  Topeka  &  S.  F.  R. 
R.  V.  151.  155,  175 

Va.  Midland  R.  R.  v.  155,  180 
Roberts,  Cisco  v.  17,  345 

V.  Koehler.  177 

Nixon  V.  70 

V.  Riley,  251,  254 

Van  Buskirk  v.  142 
Robinson  v.  Bland,  192 

V.  Commonwealth  Ins.  Co.  14 

V.  Great  Western  R.  Co.  162 

V.  Merchants'   Dispatch  Co.  93 

V.  Sheldon.  206 
Robson  V.  N.  Y.  Cent  &  H.  R.  R.  Co. 

174 
Rochester  &  S.  R.  Co.,  Clarke  v.  98, 
loi 

Curtis  V.  260 
Rocket,  The,  306 
Rockingham  Mutual  Ins.  Co.  v.  Bosh- 

er,  338 
Rockwell  V.  Nearing,  59 
Roesner  v.  Hermann,  85 
Rogers,  Barrett  v.  289 

Jeffersonville  R.  R.  Co.  v.  135, 
167 

V.  Webb,  316 

V.  Wheeler,  112,  215 
Rogers  Locomotive  Works  v.  Erie  R. 

R.  130 
Rome  R.  R.  Co.,   Holsapple  v.  103, 

234 
V.  Sullivan,  231 
Root  V.  Gt.  Western  R.  R.  284,  285 
Ropes.  Bearse  v.  253 
Rose,  Burlington  &  M.  R.  R.  Co.  v. 

132,  153,  179 


Rose  V.  Des  Moines  Valley  R.  R.  Co. 

91,  113 
Rosenfeld  v.  Peoria,  &c.  Railway  Co. 

118 
Rosenzweig,   Lake  Shore  Ry.  Co.  v. 

151 

Ross  7/.  Missouri,  &c.  R.  R.  213 

State  V.  172 
Rossiter  v.  Chester,  14 
Rothschild  v.  Currie,  192 

V.  Royal  Mail  S.  S.  Co.  318 
Rounds  V.  Delaware,  &c.  R.  R.  321 

V.  Providence,  &c.  S.  S.  Co.  26 
Rover,  The,  79,  262 
Rowland  v.  Miln,  313,  336 
Roy,  Penn.  Co.  v.  80 
Royal  Ex.    Shipping  Co.,    Tarbell   v. 

3 1 9'  334i  335 
Royal   Mail   S  S.    Co.,  Rothschild  v. 

318 
Royal  Netherland  S.  Nav.  Co.,  Chap- 
man V.  43 
Rush,  Dows  V.  288 
Russ  V.  The  War  Eagle.  113 
Russell,  Lowry  v.  93,  246 
V.  Madden,  200 
V.  Niemann.  318 
Whitesides  v.  263.  337,  342 
Rutland  &  Burlington  R.  R.  Co.,  Kim- 
ball V.  87,  98,  233 
Ruark,  Fassett  v.  294 
Ryan  v  Bindley,  64 

V.    Mo.,  Kansas  &  T.    R.  Co. 
196,  259. 


Sacramento  R.    R.    Co.,   Jackson    v. 

331 
Sager  v.  Portsmouth,  S.  &  P.  &  E.  R. 

R.  Co.  84,  222,  233,  255,  301 
Salmon  Falls  Man.  Co.  v.  Bark  Tan- 
gier, 203 
Salter  v.  Kirkbridge,  244 
Saltonstall  v.  Stockton,  107 
Sampson,  Renard  v.  269 
Sanders,  Wallace  v.  222.  229 
Sanderson  v.  Lambertson,  286 
Sands,  American  Exp.  Co.  v.  85,  252 

Elmore  v.  142,  143,  178 
Sanford  v.   Eighth   Ave.    R.    R.  Co. 

173 

V.  Housatonic  R.  R.  129,  233 

Philleo  2/.  215 

V.  Railroad  Co.  130 
Santee,  The,  333,  334 
Sara,  The,  189 

Saragossa.  The,  Hussey  v.  260 
Saratoga,  The,  255,  257,  319 


TABLE  OF  CASES. 


xli 


Sargent,  Cleveland  &  P.    R.   Co.   v. 
215 
Lowell  Wire  Fence  Co.  -v.  284 
Savage  v.  Corn  Ex.  Ins.  Co.  218 

Prentiss  v.  187 
Saxon,  The,  Dalzell  v.  283 
Sayers,  Va.  &  Tenn.  R.  R.  v.  85 
Schaefer,  Conn.  Mut.  Life  Ins.  Co.  v. 

64 
Schenck,  Gray  v.  59 
Schieffelin  v.  Harvey,  234 
Schier,    American    Merchants'  Union 

Ex.  Co.  V.  223 
Schiff  ^.  N.  Y.  C.  &  H.  R.  R.  68,  270, 

285 
Schiller,  Byrne  v.  61 
Schloss  V.  Heriot,  298,  299 
Schmidt  v.  Blood,  260 
Schmuck,  St.  Louis  &  S.  E.  R.  Co.  304 
Scholey.  Anderson  z'.  215 
School    Dist.  V.   Boston,  Hartford  & 

Erie  R.  84 
Schultz  V.  Third  Ave.  R.  R.  321 
Schumaker,  Baltimore  &  Ohio  R.  R. 

V.  284 
Schurmanns,  Gen.  Iron  Screw  Collier 

Co.  V.   19,  70 
Schutter  v.  Adams  Exp.  Co.  253 
Schiiyler,  N.  Y.  &  N.  H.  R.  R.  Co.  v. 

23 
Schwinger  z/.  Raymond,  216 
Scotia,  The,  190,  194 
Scotland,  The,  9,  23,  53,  60,  61,  63,  70, 

71 
Scott  z/.  Baltimore  S.  S.  Co.  325 

Chicago,  &c.  R.  R.  v.  331,  332 

V.  London  &  S.  K.  Docks,  260 

V.  Pilkington,  188 

Scudder  v.  Union  Nat.  Bank,  187,  349 

Seaboard,  &c.  R.  R.,  Capehart  v.  125 

Taylor  v.  268 
Sears,  McArthur  7/.  318 
Seawanhaka,  The,  26,  38,  39 
Second  Ave.  R.  R.,  Jackson  v.  321 
Second  Nat.  Bk.,  Am.  Exp.  Co.  v.  90, 

222,  253,  254 
Selah,  The,  190 
Selby,  Ohio  &   Miss.  R.  R.  v.  83,  88, 

92,  108 
Seligman  v.  Armyon,  313 
Seller  v.  The  Pacific,    85,   227,   276, 

289,  292  ■ 
Semple,  Little  v.  337,  342 
Serva,  Regina  v.  204 
Sessions  v.  Western  R.  R.  331 
Seven  Hundred  &  Twenty-five  Tons 

Coal,  Holland  z/.  311 
Sewall  V.  Allen,  248 


Seyboldt  v.  N.  Y.  &  Lake  E.  R.  R.  Co. 

112 
Shand,  P.  &  O.  Co.  t/.  196 
Sharp,  Potter  v.  79 
Shaw  V.  Gordon,  337 

Railroad  Co.  v.  349 
Shea,  Chicago  &  Alton  R.  R.  Co.  v. 

211,  212 
Shedd  V.   Troy   &  Boston   R.  R.  Co. 

143 
Shelby  v.  Guy,  199,  348 
Shelden  v.  Robinson,  206 
Sheldon,  Aymar  t/.  187 

V.  Blauvelt,  185 
Sheltin  v.  Lake  Shore  &  M.  S.  R.  169 

V.   Merchants'  Trans.  Co.  271, 
275 
Shepard,  King  v.  307 

V.  Naylor,  294 
Sheppard  v.  Taylor,  72 
Sheridan  v.  Brooklyn  City  R.  R.  176 
Sherlock  v.  Ailing,  51 
Sherman  v.  Chicago  R.   R.   Co.  142, 
163 

V.  H.  R.  R.  Co.  331 

V.  Inman  S.   S.   Co.    104,  305, 

311 
V.  Western  Trans.  Co.  260 
Sherrard,  Madan  v.  235 
Woodruff  V.  226 
Sherrod,  Louisville.  &c.    R.  R.  v.  117 
Sherwood,  Gen.  Mut.   Ins.  Co.  v.  31, 

304,  306 
Shield,  Hicks  v.  61. 
Shriver  v.   Sioux  City,  &c.  R.  R.   Co. 

84,  214,  218,  253 
Shuenfeldt  ■z/.  Junkerman.  184 
Shunk  V.  Phila.  &  Prop.  Co.  332 
Sidney,  The,  338 
Sidonian,  The,  267 
Siger  V.   Syracuse,  B.  &  N.  R.  R.  Co. 

80 
Simon  v.  The  Fung  Schney,  236 
Simmons  v.  Law,  238 

V.  New  Bedford,  &c.  Steamboat 
Co  78 
Simms,  Chicago  &  Alton  R.  R.  v.  123, 

126 
Simpkins  v.   Norwich  Steamboat  Co. 

245 
Simpson,  Kansas  City,  &c.   R.   R.  v. 
118 
V.  Thomson,  47 
Sims.  Jones  ■y.  90.  107 

Lafayette  &  Ind.  R.  R.  v.  158 
Singleton  v   Hilliard,  240,  326 
Sinnickson,    The  Charles  P.,  Tygert. 
Co.  V.  253 


xlii 


TABLE  OF  CASES. 


Siordet  v.  Hall,  236 

Sioux  City,  &c.,  R.  R.  Co.,  Shriver  v. 

84.  214,  218,  253 
Sisson  V.  Cleveland  &  Toledo  R.  R. 

103,  238 
Sisters,  The,  70 
Six   Hundred    and    Thirty   Casks    of 

Wine,  259,  328 
Skelton,  City  Bank  of  N.  Y.  v.  316 
Skillman,  R.'  R.  Co.  v.  133,  174 

Cin.,    S.    &   G.    R.    R.    Co.   v. 
170 
Skinner  v.  Hall,  284 
Slater  v.  Hayward  Rubber  Co.  302 

V.  South  Car.  R.  Co.  255,  299 
Slayton,  Expirte,  55 
Sleade  v.  Payne.  331 
Sleeper  ^/.  Penn.  R.  R.  Co.  185 
Slocum  V.  Fairchild,  299 
Sloman   v.     Great    Western   R.    Co. 

210 
Sloop  Pekin,  Smith  v.  323 
Smallman  v.  Whilter,  157 
Smith  7'.  British,  &c.  Packet  Co.  79 
V.  Dinsmore,  123,  128 
Jerome  v.  140 
Kain  v.  80,  112 
V.  Kirby,  70 
Lewis  t/.  252 
V.  Mead,  184 
V.  N.  Y.  Central  R.  R.  77,  79, 

86,  120 
V.  New  Haven  &  Northampton 

R.  R.  78,  98 
V.  North  Carolina  R.  R.    120, 

256 
V.  Pittsburgh,  F.  W.  &  C.  134 
Rixford  v.  98,  215 
Stephen  v.  133,  172 
V.  Sloop  Pekin,  323 
Smitha,  Central  R.  R.  &  Banking  Co. 
V.  83,  102,  216 
V.  Louisville  &  N.  R.  Co.  126 
Smuch,  Central  R.  R.  Co.  v.  335 
Smyrl  v.  Niolon,  253,  296,  298 
Smyser,  Illinois  Central  R.  R.  v.  243 
Snider  v.   Adams  Exp.   Co.  84,   222, 

223 
S.  A.  D.  R.  R.  Co.  Brush  v.  91 
South  Boston    R.    R.,    Bradshaw    v. 

165 
South  Car.  R.  Co.,  Bamberg  v.  98 
Hall  V.  136,  172 
Inman  Line  v.  83,  253,  340 
V.  Nix,  175 
Slater  v.  255,  299 
South  Florida  R.  R.  Co.   v.   Rhoads, 
130,  132,  157,  172 


South  &  North  Ala.  R.  R.  Co.  v.  Hen- 
lein,  83,  98,  117,  118 

V.  Huffman,  154 

V.  Wood,  216 
South.   St.  Louis,    Alton,   &c.  R.   R. 

Co.  V.  135,   137 
Southern  Exp.  Co.  v.   Armstead,  92, 
114 

Caldwell  v.  312,  314 

V.  Caperton,  123 

V.  Crook,  83,  231,  232 

V.  Everett,  211,  212 

Glenn  v.  124,  129 

V.  Glenn,  123 

V.  Hunnicutt,  123 

7A  Kaufman,  213 

Kember  v.  267 

Levy  V.  278 

V.  Moon,  84,  118 

V.  Newby,  221,  250 

Porter  z/.  123,  124 

V.  Purcell,  263 

St.  John  V.  243 

V.  Urquhart,  279,  280 
Southern  Kansas  Ry.  Co.  v.  Hinsdale, 

I33i  153 
V.  Rice,  168 
Southern  Life  Ins.  Co.  v.  Packer.    17 
Southern  Pac.  R.  R.   Co.,   Bland  v. 

175 
Houck  V.  153 
Southern  R.  R.  Co.,   Crawford  v.  284 

Hurt  V.  107 
SpaidsT/.  N.  Y.  Mail  S.  S.  Co.  314 
Spangler,   Lake  Shore  &  M.    S.   Ry. 

Co.  z/.  85 
Spaulding,  Read  v.  236,  303 
Spears,  Georgia  R.  R.  v.  99,  231 
Spellman,  American  Exp.   Co.  v.  270 
Spence  v.  Chadwick,  313 
Spencer  v.  Dagget,  307 
Spencer,  The  J.  F.  190 
Speyer  v.  Mary  Belle  Roberts,  262 
Spicker,  Penn.  R.  R.  v.  178 
Spinetti  v.   Atlas  S.   S.   Co.   87,    318, 

320,  323,  324 
Spirit  of  the  Ocean,  The,  37 
Spoffard,  Brown  v.  268 
Spofford,  Sturges  v.  345 
Spooner  v.  Hannibal  &  St.  J.  Ry.  Co. 

207 
Sprague  v.  Missouri  Pac.  R.   R.  Co. 

125 
Spring  V.  Haskell,  8,  23,  39 
Springs  Co.,  Cowell  v.  16 
Sproat  V.  Donnell,  246,  247 
Squire  v.  N.  Y.  Cent.  R.  R.   Co.  100, 

117,  217,  275,  276 


TABLE  OF   CASES. 


xliii 


St.  Anthony  Steamboat  Co.,  Choteau 

V.  112,  248 
St.  Contra,  Agnew  v.  98 
St.  John,  Mullen  v.  259 

V.  Southern  Exp.  Co.  243 

Van  Santvoord  v.  245 
St.  Louis,  A.  &  T.  H.  R.  R.  v.  South, 

I33i  137 
St.   Louis  Co.,   Hibernia  Ins.  Co.  v. 

298 
St.    Louis,    I.    M.   &   S.    R.   Co.   v. 
Knight,  292 

Mosher  v.   164 
St  Louis,  Kansas  City  &  N.  R.  R.   v. 

Cieary,  273 

Gillepsie  v.  237 

Halliday  v.  284 

Marshall  v.  166 
St.  Louis,  &c.  R.  R.  Co.,  Clark  v.  94, 
100 

Cloud  V.  163 

V.  Dalby,  135,  137 

V.  Dawson,  123 

V.  Dorman,  78,  99 

Evans  v.  107,  144 

V  Lesser,  1 1 5 

Lillis  V.  142,  171,  173 

V.  Mackie,  154,  166,  169,  230 

V.  Myrtle,  139 

V.  Piper,  84 

V.  Schmuck,  304 

Thayer  v.  84,  92 
St.  Paul  &  Chic.    R.  R.,  Jacobus  v. 

113 
St.  Paul  &  D.  R.  Co.,   Arthur  v.  333 
St.  Paul  &  Pac.  R.  R.,  Du  Laurans  v. 

135 
St.  Paul,  M.  &  M.  R.  Co.,  Hardenberg 

V.  159,  172 
St.  Paul  R.  R.   Co.,  Moulton  v.   106, 

118 
Standard  Oil  Co.,  N.  Y.  Cent.,  &c.  R. 

R.  Co.  V.  303,  326 
Standish   v.   Narragansett  S.    S.    Co. 

140 
Star  of  Hope,  The,  327 
Star  of  Scotia,  The,   18,  65 
Star  Union  Co.,  French  v.  317 
State  V.  B.  &.  O.  R.  R.  85 

V,  Campbell,  142,  174 
V.  Chovin,  131,  133 
V.  Goold,  132,  134 
V.  Hartford  &  N.  H.  R.  R.  130 
V.  Kinney,  173 
Landrigan  v.  170 
Loughlin  v.  30 

V.  Mayor,   &c.   of  Jersey  City, 
59 


Stater^.  Overton,  146,  159,  178 

V.  Ross,  172 

V.  Thompson,  141 
State  Line  S.  S.  Co.,  Steele  v.  86 
State  Rights,  Ralston  v.  320 
Staten  Island  R.  R.  Co.,  Carroll 2/.  50, 

51,  108,  219 
Statham,  New  Orleans,  &c.  R.  R.  Co. 

V.  176 
Steamboat  Co.  v.  Bason,  307 
Steamboat  H.  M.  Wright,  162 
Steamboat   Milwaukee,    Baker  v.    2, 

272 
Steam  Nav.  Co.,  Miller  v.  284,  302 

Wells  V.  234 
Steamship  Co.,  Barnes  v.  8 

Bazin  v.  252,  299,  304 

Lord  V.  8,  32,  39 
Stedman  v.  Western  Trans.  Co.  87 
Steele  v.  Burgess,  328 

V.  State  Line  S.  S.  Co.  86 

V.  Townsend,  83 
Steen  v.  Niagara  Fire  Ins.  Co.  123 
Steers  v.  Liverpool,  &c.  S.  S.  Co.    117 
Steinway,  Benzing  v.  79 
Steinweg  v.    Erie  Railway,   79,    227, 

234 
Stephen  v.  Smith,  133,  172 
Stephenson,  Nelson  v.  288,  290,  293 
Stern,  Penn.  R.  R.  Co.  v.  244,  337 
Stettaners,  Adams  Exp.  Co.  v.   230, 

252,  253,  261 
Stevens,  Grand  Trunk  Ry.  v.  \\\ 

V.    Navigazione    Gen.   It.    198, 

301,  324 

Railroad  Co.  v.  88 
Stevens,    &c.    Trans.    Co.,    Tucker- 

mann  v.  298 
Stevenson  v.  Jewett,  80 

Nelson  v.  283 
Stewart  v.  Board,  &c.  59 

V.  Brooklyn,  &c.  R.  R.  321 
Stiles  V.  Davis,  316,  317 
Stinson  v.  Wyman,  42 
Stocton,  Saltonstall  v.  107 
Stoddard  v.  Long  Island  R,   R.    Co. 

87 
Stoga,  The,  294 

Stone  V.  Chicago  R.  R.  Co.  146,  162, 
173,  176 
V.  Marsh,  347 
Stoomvaart   Maatschappy   Nederland 

V.  Peninsular  &  O.  S.  N.  Co.  43 
Storer,  Gauche  v.  290 
Storrow,  Atlantic  Ins.  Co.  v.  318,  339 
Stoval,  Plant  v.  39 
Stowe  V.  N.  Y.,  Boston  &  Providence 

R.  R.  Co.  331 


xliv 


TABLK  OF  CASES. 


•Strain,  Indianapolis  R.  R.  Co.  v.  78 

Straker  v.  Hartland.  70 

Street,  Ewart  v.  253,   297,  299,    305, 

307 
Strohn  v.  Detroit  &  Mich.   R.  R.  Co. 

229,  270,  313 
Strouss  V.  Wabash,  &c.  R.  R.  Co,  296, 

298,  307 
Sturgeon,  Hill  v.  252,  262,  330 

Nill  V.   299 
Sturges  V.  Spofford,  345 

V.  The  Columbus,  342 
Sturm,  Grand  Trunk  Railway  v.  153 
Sue.  The,  153 
Sullivan,  Louisville  C.  &  L.  R.  R.  v. 

173 
V.  Old  Colony  R.  Co.  154,  177, 

246 
Rome  R.  Co.  v.  231 
V  Thompson,  154,  246 
Sultana,  The  Steamboat,  v.  Chapman, 

331 

Sumner  z/.  Walker,  285 

Sun  Mutual  Ins.  Co..  Lawton  v.  323 

Sunday  v.  Gordon,  320 

Surrey,  The,  334 

Sutro  V.  Fargo,  255 

Sutton,  Illinois  Cent.   R.   R.   v.   139, 

171 
Swan,  DeCuadra  v.  61 

V.  Manchester  «&:  L.  R.  R.  134, 

138,  176 
V.  W^illiams,  59 
Swanzy,  African  Steamboat  Co.  v.  70 
Swarthout.  Ohio  &  M.  R.  Co.  v.  160 
Sweitzer,  Verner  v.  230.  250 
Swett,  Chic.  &  N.    W.   R.   R.   Co.  v. 

81 
Swift,  Hannibal  R.  R.  Co.  v.  237 
V.  Pacific  Mail  Co.  286 
V.  Tyson,  13,  202 
Swindler  v.   Hilliarcl,   240,    263,   325, 

326 
Swinney,  Collier  z/.  308 
Sylvester,  Eveleigh  v.  308 
Syracuse  &  Bingh.,  &c.  R.  R.,  Hill  v. 

142,  143,  163 
Syracuse.  &c.  R.   R.,   Mynard  v.  78, 

98,  103,  234 
Syracuse,  B.  &  N.  R.  R.,  Siger  v.  80 


Tabor,  Hunnewell  v.  93 

Tabor,  The.  321 

Talbot.  Little  Rock  R.  R.  v.  32: 

Fuller  V.  78 

Little  Rock,  M.  R.  &  T.  R.  Co. 
V.  83 


Talbot  V.  Merchants'  Dispatch  Trans. 

Co.  184 
Talcott,  Pine  Grove  v.  14 
Tangier  The,  24,  331 
Tangier  Bark,  Salmon  Falls  Mfg.  Co. 

V.  203 
Tanner,  Atlanta,    &c.    R.  R.   Co.   v. 
201 
V.  N.  Y.  Central  &  H.  R.  R.  82 
Tarbeil  v.  Northern    Central    R.    R. 
167 
V.   Royal   Exchange    Shipping 
Co.  319,  334,  335 
Tarbox   v.    Eastern    Steamboat   Co. 

266 
Tardos  v.  Chicago,  &c.  R.  R.  285 

Tennessee  v.  302 
Tarpley,  Watson  ■z'.  13 
Tate  V.  Hyslop,  340 
Tattersall  v.  The  National  S.   S.  Co., 

Limited,  82 
Taubman  v.  Pacific  S.  N.  Co.  86 
Taylor  v.  Cayzer,  80 

Elmendorf  v.  199 

V.   Little  Rock,  &c.  R.  R.  277 

V.  Liverpool,  &c.  S.  S.  Co.  318, 

341 

Packard  v.  297,  298,  299,  305 

V.  Seaboard  &  R.  R.  R.  268 

Sheppard  v.  72 

Williams  v.  98 
Teall  V.  Barton.  218 
Tennessee  v.  Tardos,  302 
Terre  Haute,  Harvey  v.  117 
Terry  v.  Flushing  R.  R.  146,  178 

McCarthy  v.  347 
Texas  &  P,  R.  R.,  Breen  v.  146 

V.  Bond.  175 
Texas  Central  R.  R.  v.  Morris,  127 
Thames,  The,  333 
Thayer  v.  St.   Louis,  Alton  &  T.   H. 

R.  84,  92 
Thebaud.  Arden  S.  S.  Co.  v.  93,  266 
Third  Ave.  R.  R.,  Hamilton  v.  168 

Isaacs  7J.  320 

Schulz  V.  321 
Thomas,  Ala.  G.  S.  R.  R.  v,  83,  280, 
283 

V.  Chicago  &  G.  T.  Co.  154 

Kentucky  Central  R.  R.  v.  154 

V.  Osborn,  1 1 

V.    The    Morning   Glory,    218, 
231 
Thomas  Melville,  The,  256 
Thommessen  f .  Whitwill,  21,  40,  72, 

194 
Thompson  v.  Chicago  &  Alton  R.  R., 
128 


TABLE  OF  CASES. 


xlv 


Thompson,  Chicago  &  A.  R.  R.  v.  208 

Ex  parte,  323 

Gleddell  v.  335 

V.  Liverpool,  &c.  S.  S.  Co.  333 

Perry  v.  224,  226,  271 

Pittsburgh,  C.  &  St.  L.  R.  R.  v. 
78 

State  V.  141 

Sullivan  v.  246 
Thomson,  Simpson  v.  47 
Thorpe  v.  N.  Y.  C.  &  H.  R.  R.  90 
Three    Hundred    &    Eighteen    Tons 

Coal,  Johnson  v.  248 
Thrift  V.  Youle,  330 
Thurkhill,  VVhitesides  v.  84,  301 
Thurston   v.    Union    Pac.  R.    R.  Co, 

156 
Tierney  v.  N.  Y.  Central  R.  R.  246 
Tiers,  New  Brunswick   Stbt.    Co.    v. 

236 
Tiffany,  Miller  z'.  185,  186 
Tillman,  Columbus  &  W.    R.  Co.  v. 

285 
Timpson,  Finn  v.  253 
Tirrel,  Gage  v.  270,  312  . 
Tisdale,  Int.  &  G.  N.  Co.  v.  315 
Titania,   The,   91,  189,  200,   300,   305, 

341 

Todd,  Mavings  z/.  114 
Waring  z/.  1 1 4 

Toledo,  Peoria  &  W.  R.  R.  v.  Patter- 
son, 154,  171,  173 

Toledo,  Wabash,  &c.  R.  R,Barsemer 

^-  331 
V.  Beggs,  150 
V.  Fredericks,  81 
V.  Lockhart,  282,  284 
V.  Wright,  133,  168,  171 
Tons  of  Coal,  O'Rourke  v.  267 
Town   of   South    Ottawa  v.  Perkins, 

200 
Townsend  v.    N.  Y.  Central    R.    R. 
168,  169 
Steele  v.  83 
Township  of  Elmwood  v.  Marcy,  200 
Transfer  Co.  v.  Kelly,  155 

V.  Newhall,  76 
Trawick,    Gulf,  &c.   Railway  v.    100, 

123 
Trent,  Louisville  &  Nashville  R.  R.  v. 

102 
Trent  &  M.  Nav.   Co.,    Hyde  v.   241, 

302 
Tripp,  Old  Colony  R.  R.  v.  157 
Trollinger  v.  EastTenn.,  V.  &  G.  R. 

R.  159    160 
Troustine,  III.  Cent.  R.  R.  ?/.  162 
Troy  &  Boston  R.  R.  Shedd  v.  143 


Tucker,  Eagen  v.  80 

Tuckerman  v.    Stephens,  &c.   Trans. 

Co.,  298 
Tullcr  V.  Talbot,  78 
Turner  v.  Lewis,  185 

v.  Protection  Ins.  Co.  311 
Turney  7/.  Wilson,  256,  257,  258,  298 
Tutt,  Jacobs  V.  334,  337 
Twenty-Third  St.  R.   R.  Co.,  Corbett 

7A  131 
Twogood,  Franklm  v.  201 
Tybee,  The,  244 
Tygert    Co.   v.    The  Charles   P.  Sin- 

nickson,  253 
Tyson  v.  Post,  247 

Swift  V.  13,  202,  247 

Ulrich  V.  N.    Y.  C.  &  H.   R.  R.  90,. 

164 
'Unit,  The,  44 
United  States  v.  Barrows,  345 

V.  Bowen,  21 

V.  Coombs,  16 

Cox  v.  186 

Gratiot  v.  345 
U.   S.  &  Canada  Exp.   Co.,  Hadd  v. 

284 
U.  S.  Express  Co.  v.  Bach  man,    107,, 
118,  235,  257 

7'.  Harris,  123,  127,  28 1 

V.  Holmes,  204 

Kallman  v.  84,  250,  255 

V.  Klintock,  204 

Oppenheimer  z'.  114,  117,  208 

Reed  v.  282 
United  States  Tel.  Co.,  Breese  v.  227 
Union  Bank,  Scudder  v.  187,  349 
Union  Exp.  Co.,  Place  v.  309 
Union    Ferry   Co.,    Hoffman   v.    158^ 

218 
Union  Pac.  Ry.  Co.  v.  Moyer,  334 

Ormsby  7/.  126,  263 

Thurston  v.  156 
Union  R.  R.  &  Trans.  Co.  7/.  Riegel, 

268 
Union  Railway  Co.,  Murphy  7/.  155 
Union  Steamboat   Co.,  Rintoul  7/.  83, 

339.  341 
Union  Transp.    Co.,    Gaines   v.    235, 

250 
Union  Trans.  &  Ins.  Co.,  Levering  v. 

84,  257 
Uriel,  Price  v.  255 
Urquhart,    Southern   Express   Co.  v. 

279,  280 

Vaderland,  Wolff  v.  327 
Valentine,  Collier  v.  262 


xlvi 


TABLE  OF  CASES. 


Valleley,  Railroad  Co.  v.  173 
Van  Buskirk  v.  Roberts,  142 
Van   Deventer,  Missouri  Pac.  R.  R. 

V.  84,  91 
Van  Kirk  v.  Penn.  R.  R.  147 

White  V.  267 
Van  Natta  v.  Mut.  Security  Ins.  Co. 

339 
Van  Santvoord  v.  St.  John,  245 
Van  Shaack  v.  North.  Trans.  Co.  230 
Van  Winkel  v.  Adams  Exp.  Co.  120 
Von  Volkenberger,  Compton  v.  174 
Vance  v.  Campbell,  64 
Vanderbilt  v.  Quimby,  36,  142 

V.  Richmond  Turnpike  Co.  320 
Vanderpoel,  Crystal  Palace  v.  162 
Vann,  Dupont  v.  236,  298 
Varnell,  Railroad  Co.  v.  307 
Vasser,  Comegys  v.  338 
Vaughn,  Redpath  v.  298 
Vedder  7/.  Fellows,  131,  132,  141 
Vendreyes,  Everett  •z/.  192,  194 
Ventura,  The,  8,  32 
Venner,  The,  294 
Vernard  v.  Hudson,  299 
Verner  v.  Sweitzer,  230,  250 
Vernon,  The,  74 
Vessel  Owners'  Towing  Co.,  In  re,  27, 

38 
Vidette,  The,  316 
Village  of  Middletown,  The,  59 
Viner  v.  N.  Y.,  Alexandria,  &c.  S.  S. 

Co.  214 
Vinton  v.  Middlesex  R.  R,  155 
Virginia,  &c.  R.  Co.,  Gleason  v.  296 
Virginia  &  Tenn.  R.  R.  v.  Sayers,  85 
Virginia  Midland  R.  R.  v.  Roach,  155, 

180 
Vivid,  The,  259 
Volant,  The,  37 
Voorhees,  Jones  v.  84,  233 
Voorwaarts,  The,  42 
Vose,  Dedekam  v.  327 
V.  Morton,  240 
Vroman  v.  American  Ex.  Co.  120,  127 
Vt.   &   Mass.    R.    R.    Co.,    Common- 
wealth V.  230 


Wabash.  &c.  R.  R.,  Ball  v.  103 
Brown  7/.  1 1 5 
Buddy  V.  331 
Coupe  V.  106 
Davis  V.  309 
East  St.  L.  R.  R.  v.  333 
Meyers  v.  88 
Strouss  V.  296,  298  307 
Walker  v.  146 


Wade,  Beckford  v.  16 

Dunseth  v.  342 
Wahle  V.  Holt,  282 
Wakefield,  Holmes  z/.  154,  173 
Walker  v.   Dry  Dock,  E.  B.  &  B.  R. 
R.  142 

Forsythe  v.  214 

Sumner  v.  285 

V.  Wabash,  &c.  R.  R.  146 

V.  Western  Transp.  Co.  23.  30, 
35,  83,  96 
Walkyrien,  The,  190 
Wallace  v.  Clayton,  303 

V.  Matthews,  230 

V.  Providence  &  Stonington  S. 
S.  Co.  38,  42,  54 

V.  Sanders,  222,  229 
Walpole  V.  Bridges.  297 
Wamsutta  Oil  Refining  &  Mining  Co., 

Emp.  Trans.  Co.  v.  85 
Wanderer,  The,  269 
War  Eagle,  Russ  v.  113 
Warfield  v.  Fox,  16 
W^aring  v.  Morse,  299 
Warkworth,  The,  22,  30,  35.  304 
Warner  v.  Western  Trans.  Co.  211 
Warren  Chemical  &  M.  Co.,  Curren  v. 

260 
Warren,  Chicago  &  R.  Ind.  R.  R.  v. 

331-  332 
V.  Fitchburg  R.  R.  78 
Wasatch  R.  R.,  Anderson  v.  256 
Washburn,  Atchison  &   Neb.   R.  R. 

V.  199 
Washington,  The,  44 
Washington  v.  Raleigh  R.  R.  286 
Washington,  A.  &  G.  Co.,  Bradley  v. 
198 
Carpenter  v.  170 
Washington,  &c.    R.  R.,  Lemont  v. 

156 
Wasmer  z/.  Del.,  L.  &  W.  R.  R.  in 
Waterbury  v.  N.  Y.  Central  &  H.  R. 

R.  106 
Waterman,  Reeves  v.  303 
Waters  v.  Cox,  188,  201 
Watertown  Fire  Ins.  Co.,  Houghton 

V.  240 
Watervliet,  T.  &  R.    R.,  Higgins   v. 

154 
Watson  V.  Duyckinck,  60 
V.  Marks,  49 
V.  Tarpley,  13 
Watts  V.  Camors.  197 
Way  V.  Chicago,  R.  I.  &  P.  R.  R.  108, 

150 
Weber,  Atchison,  T.  &   S.  F.  R.  v. 
154,  155,  173 


TABLE   OF   CASES. 


xlvii 


Weeks  v.  N.  Y.,    N.  H.    &   H.   R.  R. 
207 
Peck  V.  233 
Weil  V.  Merchants,  Dis.  Co.  284 

V.  The  Express  Co.  267 
Weir,  Flint  &  Marquette  R.  v.  113 
Welles  et  al..   Hooper  v,  83,  90,  99, 
III,  238 
V.  The  Express  Co.  123,  124 
Wellington,  The,  247 
Wells,  Chesapeake  &  O.  &  S.   W.  R. 
Co.  V.  152 
Lyons  t^.  31 
V.  Maine  S.  S.  Co.  316 
V.  N.  Y.  Central  R.  R.  86,  88 
V.  Steam  Nav.  Co.  234 
Wells  et  al.,  Hayes  v.  206,   212 
Welsh,  Boyce  v.  298 

V.  Pittsburgh,    Fort  Wayne   & 

Chic.  R.  R.  77,  84 
V.  Realm.  295 
Wentz  V.  Erie  Railway  Co.  142,  148, 
163 
Penn.  R.  R.  v.  147.  161 
•Werle  v.  Long  Island  R.  R.  159,  161 
Wertheimer  v.  Penn.  R.  R.  256 
West   V.   The  Berlin,    269,  2S8,  290, 

309 
West  Chester  &  Phila  R.  R.  v.  Miles, 

152 
Westcott  V.  Fargo,  120,  127,  230 
Hopkins  t/.  117,  122,  232 
Limburger^'.  263 
Western    A.    R.   R..  Murphy  v.   153 
Western  &  A.  R.  R.  Co.,   Ayres  v. 
263 
V.  Bishop,  85 
V.  Exposition  Cotton  Mills,  196, 

234,  286,  327 
V.  Hamilton,  269 
Judson  V.    117,  222,   231,  242, 

279 
Kimbal  7/.  218 
McDonald  v.  284 
Western  R.  R.,  Nolton  v.  107 

Sessions  v.  331 
Western  Transp,   Co.,  Champlain  v. 
16,  22,  24,  29 
Downer  v.  252,  255 
V.  Newhall,  114,  233,  250 
Parmlee  v.  284 
Sherman  v.  260 
Stedman  v.  87 
Walker  v.  330 
Wa»-ner  z/.  211 
Western  Union  Tel.  Co  ,  Blanchardz/. 
259 
Cole  V.  123 


Western  Union  Tel.  Co.,  Heimant/.  125 

Wolf  7/.  123 

Young  V.  123,  227 
West  Midland   Co.,    Gregory  v.   78, 

131,235 
Weston  V.  N.  Y.  El.  R.  R.  79 
Wetmore,  Little  Miami  R.  R.  v.  325 
Wetzall  2/.  Dinsmore,  121 
Weyand   v.  Atchison,  T.  &  S.  F.  R. 

Co.  244  337 
Wheeler,  Aetna  Ins.  Co.  v.  279 

Barter  v.  193,  284,  325 

Kay  V.  300 

Macy  V.  36 

V.  Oceanic  Steam  Nav.  Co.  49 

Rogers  v.  112,  215 
Whilter,  Smallman  v.  157 
Whistler,  The  Bark,  30,  37 
White  V.  Boyce,  269 

V.  Missouri  Pac.  R.  Co.  313 

V.  Van  Kirk.  267 
Whitehouse  v.  Halstead,  244 
White  Line  Co.,  Edwards  7/.  317 
Whitesides  v.  Russell,  263,  342,  337 

V.  Thurkill.  84,  301 
Whitlock,  Mc Andrews  v.  331,  336 
Whitmore  v.  The  Caroline,  248 
Whitsell  V.  Crane,  232 
Whittemore,  111.  Cent.  R.  R.  v.  132, 

141,  172 
Whittle,  East  Tenn.,   &c.    R.    R.    v. 

105,  112 
Whitwill,  Leonard  v.  47,  54 

Thommessen    v.     21,    40,    72, 
194 
Whitworth  v.  Erie  R.  Co.  236,  257, 

263,  278,  281 
Wightman  v.  Chicago  &  N.  W.  R.  R. 

142 
Wilcox,  Erie  Railway  Co.  ^'.  213 

Wright  7K  321 
Wilde  V.  The  Merch.  Despatch  Trans. 

Co.  274 
Wiley,  Brown  z'.  269 
Wilhelmina,  The,   262 
Wilkes,  Int.  &  G.  N.  R.  Co.  v.  174 
Wilkins,  Balfour  v.  240 
Wilkinson.  Brown  v.  7,  40 

V.  First  Nat.  Ins.  Co.  123 
Willamette  Trans.  Co.,  Dice  v.  147 
Willan,  Covington  v.  75 
Willard,  Ellis  7a  266 
Willetts  V.   Buffalo,  &c.    R.  R.    139, 

176 
Williams  v.  African  S.  S.  Co.  49 

V.  Carr,  201 

Chicago  &  N.  W.  R.  R.  z/.  151, 
152,  159 


xlviii 


TABLE  OF  CASES. 


Williams,  Northern  z/.  217 

V.  Pullman  Car  Co.  90 
Swan  V.  S9 
V.  Taylor,  98 
Willis  V.  Long-  Island  R.  R.  155 
Wilis  V.  Claflin,  349 
Wilmington,  &c.  R.  R.,  Branch  v.  8- 
Clark  V.  174 
McRae  v.  130,  178 
Wilson,  Adams  Exp.  Co.  7>.  284 

V.    Chesapeake  &  Ohio  R.  R 

148,  231,  265 
Clark  V.  338 
V.  Dickson,  7.  30,  37,  61 
V.  Freeman,  120 
V.  Grand  Trunk  R.  Co.  no 
V.  Hamilton,  84,  99 
Kopitoff  V.  32 

V.  N.  Y.  Central,  S^c.  R.  R.  81 
V.  Rankin,  323 
V.  The  Ohio,  323 
Turney  v.  256,  257,  258,  298 
Wiltse  V.  Barnes,  243 
Wiman,  Fitzhugh  v,  267 
Wing  V.  N.  Y.  &  L.  Erie  R.  R.  236 
V.  N.  Y.  Sleeping  Car  Co.  76 
Winona,  &c.  R.  R.,  Lawrence  v.  245, 

282 
Wisez/.  Gt.  Western  Railway  Co.  102, 

213,  214,  332 
Wissman,  The  Ship  Howard  v.  291 
Wolf  t/.  W.  U.  Telegraph  Co.  123 
Wolfe  V.  Meyers.  267 
Wolff  V.  Vaderland,  327 
Wonack.  Southern  Exp.  Co.  t/.  312 
Wood,   Merch.   Wharf  Assn.  v.   219, 
300 
V.  Milwaukee  &  St.  Paul  R.  R. 

282 
McCrane  z/.  312 
Southern  &  N.   Ala.   R.    R.  v. 
216 


Woodland,  The,  188 
Woodley  v.  Michell,   301 
WoodrufifT/.  Havemeyer,  333,  335 
Nelson  ^'.  266 
V.  Sherrard,  226 
Woolverton  v.  Lacey,  323 
Worthington,  Kings'  v.  64 
Wright  ^J.  Bales,  64 

V.  California  Cent.  R.  Co,  151,, 

156,  172,  180 
V.  Gaff  ^/«/.  83 
Norwich  Trans.   Co.  v.   7    27 

53.  67 
V.  N.  Y.  C.  R.  R.  30 
Toledo,  &c.  R.  R.  v.  133,  168, 

171 
V.  Wilcox,  321 
Wyld  V.  Pickford.  86,  121 
Wyman  v.  Pacific  Railway  Co.  171 

Stinson  v.  42 
Wynkoop,  Demarest  v.  16 
W.  &  N.  C.    R.  R.,  Hamilton  v.   269 


Yeoman  v.  Contra  Costa  S    N.   Co  * 
no 

York  Company  v.  Central   R.    R.  82-, 
227,  273.  275,  324 

Yorton  v.  Milwaukee,  &c.  R.  R.  145 

Youle,  Thrift  v.  330 

Young,  Casselay  v.  342 

Evansville,  &c.  R.  R.  v.  83 

V.  Penn.  R.  R.  286 

V.  W.  U.  Tel  Co.  123,  227 

Younger,  Gloucester  Ins,  Co.  v.   15 


Zeregat/.  Poppe,  253 

Zing  V.  Howland,  334 

Zinn  V.  N,  J,  Steamboat  Co.  331 

Zone,  The,  288. 


THE 

MODERN  LAW  OF  CARRIERS. 


THE 

MODERN  LAW  OF  CARRIERS. 


PART  I. 

LIMITATIONS  UPON  THE    LIABILITY  OF   COMMON  CAR- 
RIERS BY  THE  LAW  MERCHANT  AS  ADOPTED 
IN  THE  UNITED  STATES. 


CHAPTER  I. 

THE    ADOPTION    OF   THE    LAW    MERCHANT    IN    THE 
UNITED   STATES. 

The  law  of  the  United  States  is  as  composite  as  the 
people.  Its  basis  is  the  common  law  of  England,  but  that 
law  has  been  modified  to  suit  our  circumstances  and 
character.  The  language  of  the  Constitution  which  con- 
fers upon  the  Federal  Courts  "  admiralty  and  maritime 
jurisdiction,"  has  been  interpreted  in  no  narrow  sense, 
and  those  courts  have  administered  the  maritime  law  of 
Europe,  as  adopted  in  America,  as  well  as  the  local  juris- 
prudence of  each  State  which  forms  part  of  the  American 
Commonwealth.  In  no  country,  therefore,  is  the  respon- 
sibility of  the  judge  and  the  lawyer  more  onerous. 

The  common  law  of  England  and  the  civil  law  of 
Rome  imposed  upon  him  who  undertook  the  task  of  carry- 
ing goods  for  the  public  the  severe  responsibility  of  an 
insurer.  His  sole  exemption  was  for  losses  caused  by  the 
act  of  God  or  the  public  enemy.'     In  no  other  way  it  was 

^  See   the  statement  of   the   rule  in  '"  The    Maggie    Hammond,"  9 
Wallace,  435»  444  (1^69). 
1 


2  THE    MODERN    LAW    OF    CARRIERS. 

thought  could  fidelity  be  ensured.  This  rule  originated 
in  times  when  transportation,  both  bj'  land  and  water,  was 
insecure,  and  when  the  risk  of  collusion  between  the  car- 
rier and  pirates  or  thieves  was  great. 

As  commerce  increased,  the  necessity  for  protection  and 
encouragement  to  it  became  more  apparent.  The  security 
afforded  by  Government  to  peaceful  traders  on  land  was 
made  adequate,  and  the  rule  itself  to  them  became  less 
oppressive.  But  from  many  perils  by  sea  Government 
could  afford  no  protection.  Ship  building  developed  into 
a  science,  and  the  size  and  cost  of  vessels  increased.  It 
was  seldom  practicable  for  a  navigator  to  own  the  ship  he 
commanded.  It  became  important,  therefore,  to  encourage 
capitalists  to  invest  their  money  in  the  building  and  pur- 
chase of  ships.  But  under  the  stringent  rule  already 
mentioned,  the  person  who  owned  a  ship  which  carried  a 
valuable  cargo,  might  be  bound  for  many  times  the  value 
of  his  investment  in  the  ship,  and  thus  put  at  risk  his 
whole  fortune. 

To  lighten  his  responsibility,  the  maritime  countries 
of  the  continent  of  Europe  provided  at  an  early  day  that 
the  liability  of  a  shipowner  to  freighters  and  passengers 
should  not  exceed  the  value  of  his  interest  in  the  ship 
and  her  freight. 

There  were  other  reasons  for  this  provision,  in  addi- 
tion to  those  already  mentioned,  which  deserve  considera- 
tion. The  carrier  on  land  could  supervise  the  agents  em- 
ployed by  him  to  a  much  greater  extent  than  the  carrier 
by  water.  The  captain  and  crew,  when  once  they  had 
sailed  from  the  home  port,  were  beyond  the  control  of  the 
owner,  and  the  lives  of  the  master  and  mariners  being  at 
stake  there  was  supposed  to  be  less  likelihood  of  their 
negligence. 

To  what  extent  this  provision  has  been  adopted  and 
become  law  in  the  United  States  will  first  be  considered. 


LIMITATION    BY   THE   LAW    MERCHANT.  3 

That  it  has  been  with  reference  to  our  own  merchant 
marine  is  clear.  The  Act  of  March  3,  185 1  [chap.  43,  9 
U.  S.  Stat,  at  Large,  635],  which  has  been  re-enacted  in  the 
Revised  Statutes  ["  Title  48th,  Regulation  of  Commerce 
and  Navigation,"  chap.  6,  sects.  4282-4289],  contains  the 
first  statutory  provisions  on  this  subject  of  general  ap- 
plication to  be  found  in  America,  though  local  Statutes 
had  previously  been  passed  in  Maine  and  Massachusetts. 

In  determining  the  force  and  effect  of  this  Statute  it  is 
very  material  to  consider  its  relation  to  the  maritime  law 
by  which  other  countries  are  governed.  The  distinction 
between  municipal  regulations  and  laws  affecting  the 
commerce  between  nations  has  long  been  recognized. 
The  former  vary  with  the  needs  and  institutions  of  each 
particular  country.  The  latter  are  most  useful  when  they 
are  most  harmonious  and  uniform. 

The  Mediterranean  Sea  was  once  the  home  of  the 
commerce  of  what  was  then  the  civilized  world.  In  the 
states  bordering  upon  it  a  body  of  customs  and  sea-laws 
sprung  up.  They  had  their  origin  in  the  necessities  of 
commerce.  They  differed  in  many  respects  from  the  civil 
law  which  was,  in  effect,  the  common  law  of  those  states. 
When  the  Hanse  towns  along  the  Baltic  became  prosper- 
ous, and  when  France  began  to  send  ships  from  her 
Atlantic  ports,  most  of  these  usages  and  customs  were 
transported  to  the  North.  They  were  administered  by 
courts  of  special  jurisdiction,  which  came  in  time  to  be 
called  Courts  of  Admiralty,  or  Tribunals  of  Commerce. 
These  usages  and  customs  were  codified  and  promulgated 
at  different  times  and  by  different  governments.  Of  these 
Codes,  the  celebrated  Ordonnance  de  la  Marine  is  the 
most  complete.  But  it  is  true  of  all  of  them,  that  while 
in  form  they  are  decrees  emanating  from  the  highest 
power  in  the  State,  in  reality  they  simply  give  form  and 


4  THE    MODERN    LAW   OF    CARRIERS. 

expression  to  laws  or  customs  previously  known  and  re- 
cognized. 

Take,  for  example,  the  Ordonnance  already  referred  to. 
It  begins  : 

''  Louis,  by  the  grace  of  God,  King  of  France  and 
Navarre,  .  .  .  We  do  speak,  ordain,  declare  and 
make  known  our  will  as  follows.     .     .     .     " 

Yet  all  the  writers  on  the  subject  agree  that  most  of 
the  provisions  of  the  Ordonnance  had  been  for  centuries 
in  force  among  the  principal  maritime  nations  of  Eu- 
rope.' 

It  is  to  be  especially  noticed  that  the  authorities  just 
cited  uniforml}^  speak  of  the  Ordonnance  not  merely  as 
a  statute  or  a  decree  of  Louis  XIV,  w^hich  on  its  face  it 
purports  to  be,  but  as  a  code  or  digest  of  the  existing 
maritime  law. 

When,  therefore,  we  find  it  declared  in  the  Ordonnance 
(Book  2,  title  8,  article  2)  that  the  liability  of  the  ship- 

^  In  reference  to  this  ordinance  of  Louis  XIV,  Chancellor  Kent 
says  (Comm.,  Vol.  3,  pp.  16,  17): 

"  The  whole  law  of  navigation,  shipping,  insurance  and  bottomry 
was  systematically  collected  and  arranged.  .  .  .  Every  commer- 
cial nation  has  rendered  homage  to  the  wisdom  and  integrity  of  the 
French  Ordinance  of  the  Marine,  and  they  have  regarded  it  as  a  digest 
of  the  maritime  laws  of  civilized  Europe." 

As  long  ago  as  1759,  Lord  Mansfield,  in  Luke  v.  Lyde,  2  Burrows,. 
882,  cites  it  as  an  authority  and  says:  "It  was  collected  and  compiled 
under  authority  of  M.  Colbert." 

Emerigon  says  in  his  preface  to  his  treatise  on  Insurance,  p.  ii: 
"  The  ancient  maritime  laws  are  the  sources  which  were  open  to  the 
compilers  of  the  ordinance,  and  from  which  those  must  draw  who  would 
go  to  the  fountain  head."  He  then  gives  a  sketch  of  the  different  com- 
pilations before  the  ordinance,  and  adds,  p.  xv:  "  The  ordinance  of  1681 
is  a  compilation  of  all  these  ancient  laws."  {Les  anciennes  lots  mart- 
times  sont  les  sources  qui  furent  ouvertes  aitx  redacteurs  de  V  Ordonnance, 
et  dans  lesquelles  doivent  puiser  ceux  qui  veulent  remonter  aicx  principes^'' 
"  L'ordonnatice  de  168 i  est  un  compose  de  ioutes  ces  anciennes  lois." 

Azuni  on  Maritime  Law,  Vol.  i,  p.  393  (Am.  ed.  of  1806),  says  : 
"  The  ordonnance  has  become  in  some  sort  the  common  law  of  all  the 
neighboring  nations." 

See  also  Bedarride,  du  Commerce  Maritime,  tome  i,  sections  10,  18, 
pp.  14,  21. 


LIMITATION    BY   THE    LAW   MERCHANT.  5 

owner  for  the  negligence  of  the  master  is  discharged  by 
the  abandonment  of  the  ship  and  freight/  we  can  only 
conclude  that  this  provision  was,  as  long  ago  as  the  reign 
of  Louis  XIV,  the  established  maritime  law  of  continental 
Europe.  A  still  older  compilation,  the  Consolato  del 
Mare,  contains  a  provision  to  the  same  effect,  as  to  the 
liability  of  the  owner,  although  it  did  not  undertake  to 
provide  a  remedy  by  which  this  limitation  of  liability 
could  be  enforced.^ 

The  courts  of  Holland  recognize  the  same  right  on 
the  part  of  the  owner,  and  the  same  rule  is  acknowledged 
throughout  the  continent  of  Europe.^ 

In  England,  however,  this  rule  never  was  fully 
adopted.  The  decisions  of  the  courts  of  that  country 
before  the  time  of  Lord  Mansfield  had  little  or  no  refer- 
ence to  the  commercial  law  of  Europe.  For  this  there 
were  many  reasons. 

The  English,  before  the  discovery  of  the  mariner's 
compass  in  the  twelfth  century,  were  not  and  could  not 
be  a  commercial  people.  The  tenacity  with  which  they 
clung  to  their  local  privileges,  and  especially  to  the  right 
of  trial  by  jury  of  the  vicinage,  led  them  to  look  with 
distrust  and  jealousy  upon  the  Court  of  Admiralty,  and 
its  powers  were  greatly  restricted  so  long  ago  as  the 
reign  of  Richard  II.     The  pride  with  which  the  English 

1  Valin  Comm.  Sur.  I'Ord.,  Vol.  i,  p.  490,  ed.  1841,  p.  568,  ed.  1776; 
2  Peters'  Adm,  Dec.  Appendix,  p.  xvi. 

Bedarride,  du  Commerce  Maritime,  Vol.  i,  sections  273,  276,  279, 
287.  In  section  279,  Bedarride  says  :  "In  no  case  can  the  ship  owner 
be  made  liable  by  any  consequence  of  the  voyage  beyond  his  interest  in 
the  ship  itself." 

In  sect.  287  he  says  :  "  The  right  to  abandon  the  ship  and  freight 
exists  where  the  negligence  or  willful  tort  or  quasi  tort  (quasi  delit)  is 
imputable  to  the  crew  or  to  the  captain  himself." 

^  The  Rebecca,  i  Ware  Rep.  195  (1831);  The  Phebe,  Ware,  265 
(1834).     See,  also,  Pardessus  Lois  Maritimes,  Vol.  2,  p.  161. 

'  Valin.  Comm.,  Vol.  i,  p,  568  (ed.  1776);  Liv.  2,  tit.  8,  art.  ii;  lb. 
Vol.  I,  p.  490  (ed.  1841) ;  3  Kent's  Comm.  218;  Force  v.  Providence 
Washington  Ins.  Co.,  35  Fed.  Rep.  769  (1888). 


6  THE   MODERN    LAW    OF    CARRIERS. 

have  always  regarded  the  common  law  of  that  country 
made  their  courts  look  with  suspicion  upon  any  other 
system  of  jurisprudence. 

The  colonists  in  that  part  of  America  which  now  forms 
the  United  States  were  English,  it  is  true.  But  the 
altered  circumstances  of  the  new  country  to  which  they 
came,  and  the  fact  that  their  very  existence  depended  on 
commerce,  led  them  to  modify  in  many  respects  the 
rigid  rules  of  the  common  law.  It  is  to  be  remembered 
also  that  they  came  to  America  when  the  commercial 
spirit  was  acquiring  that  strength  which  has  made  En- 
gland a  great  maritime  country. 

There  is  good  reason  to  think  that  the  Colonial  Ad- 
miralty Courts  claimed  and  exercised  the  full  jurisdiction 
which  was  the  prerogative  of  the  English  Admiralty 
before  the  time  of  Richard  II.  But,  however  this  may 
be,  the  farseeing  men  who  framed  our  Constitution,  did 
not  intend  to  limit  the  courts  of  this  country  by  any  such 
narrow  bounds  as  those  to  which  the  English  Admiralty 
Courts  were  subjected.  This,  after  long  discussion,  is 
definitely  settled.  The  opinion  of  Chief  Justice  Taney,  in 
the  Genesee  Chief,^  states  very  clearly  the  reasons  for  this 
decision.  The  limitations  upon  the  powers  of  the  En- 
glish Admiralty  were  inapplicable  to  the  condition  of  the 
colonies,  and  of  the  new  country^  to  which  the  framers  of 
the  Constitution  gave  a  stable  government,  with  powers 
adequate  in  all  its  branches,  executive,  legislative  and 
judicial. 

Still  it  does  not  necessarily  follow,  because  our  Ad- 
miralty Courts  have  the  jurisdiction  of  similar  courts  in 
continental  Europe,  that  they  will,  in  all  things,  be  guided 
by  the  decisions  of  these  courts,  or  administer  precisely 
the  same  law  as  they.     But  the  history  of  the  case  of  the 

1  12  How.  443  (185 1). 


LIMITATION    BY    THE    LAW    MERCHANT.  7 

Norwich  Trans.  Co.  v.  Wright/  leads  to  the  conclusion 
that  the  Statute  of  185:  adopted  the  rule  of  the  maritime 
law  already  quoted  from  the  ordonnance  of  Louis  XIV, 
and  that  our  Admiralty  Courts  will  enforce  it  in  all  its 
fullness. 

A  libel  in  persouaju  to  recover  damages  for  a  collision 
between  the  steamer  City  of  Norwich  and  a  schooner,  was 
filed  in  the  District  Court  of  Connecticut.  While  it  was 
pending,  the  respondent  set  up  as  a  defence  the  provisions 
of  the  Act  of  March  3,  1851.'^  The  District  Court  held 
that  these  could  not  be  administered  by  a  Court  of  Admi- 
ralty, and  that  the  remedy  of  a  party  seeking  relief  under 
them  was  in  equity.  The  decree  was  affirmed  by  the  Cir- 
cuit Court.  The  Supreme  Court  reversed  this  decision, 
and  held  that  a  Court  of  Admiralty  was  the  appropriate 
tribunal,  because  it  administered  the  maritime  law,  of 
which  this  provision  for  limiting  the  liability  of  ship 
owners  formed  a  part.^ 

The  question  then  came  up  as  to  the  extent  of  this 
limitation.  Under  the  English  statute  of  7  George  II 
(1734),  and  the  subsequent  acts  of  26  George  III  (1786) 
and  56  George  III  (1813),  it  had  been  held  that  the  words 
"  The  value  of  the  vessel  and  her  freight  then  pending," 
meant  her  value  immediately  before  the  inj  ury  complained 
of,  and  that  this  was  the  amount  for  which  the  owners 
were  liable.*      The  consideration  was   pressed  upon  the 


'  13  Wallace,  104  (187 1)  ;  s.  c.  on  Second  Appeal,  sub  nom. 
Place  z;.  Norwich  Trans.  Co.,  118  U.  S.  468  {1885).  The  decision  in 
13  Wall,  reversed  s.  c.  i  Bened.  156  (1867)  ;  8  Blatchf.  14  (1870). 

^  9  U.  S.  Stat,  at  Large,  635. 

^  See  second  note,  chap.  T,,post. 

*  Gale  V.  Laurie,  5  B.  &  Cress.  156  (1826);  Brown  ?'.  Wilkinson,  15 
Mees.  &  Wels.  390  (1846);  Lloyd  v.  Guibert,  L.  R.  i  Qu.  B.  119 
(1865). 

At  an  earlier  day  a  different  decision  has  been  suggested  by  Bayley, 
J.,  in  Wilson  v.  Dickson,  2  B.  &  Aid.  2  (1818).  At  p.  15  he  said: 
"  Possibly  (I  only  say  possibly)  the  Legislature,  from  motives  of  policy, 
might  think  that  persons  who  had  embarked  their  property  in  shipping 


8  THE    MODERN    LAW    OF    CARRIERS. 

court  that  the  American  statute  was  simply  a  re-enactment 
of  the  English  statute,  and  that  on  well  settled  rules  of 
construction  the  interpretation  which  had  been  put  upon 
its  language  by  the  English  courts  must  be  taken  to  be 
the  intent  of  the  Legislature. 

But  the  court  held  that  the  statute  was  the  adoption, 
not  of  an  English  municipal  regulation,  but  of  a  well  set- 
tled rule  of  the  law  merchant,  and  that  this  rule  was  the 
law  for  our  courts.  According  to  this  rule  the  abandon- 
ment of  the  interest  of  the  owner  in  the  ship  and  freight 
discharged  him  from  further  liability.  The  doctrine  was 
based  on  the  reasons  before  stated,  and  was  the  outgrowth 
of  the  necessities  of  commerce,  and  not  of  any  arbitrary 
enactment.^ 

Another  point  made  in  the  City  of  Norwich  illustrates 
the  subject  under  consideration.  It  was  argued  that  the 
Act  of  185 1  was  unconstitutional ;  that  it  was  a  mere  mu- 
nicipal regulation,  and  so  not  within  the  power  of  Con- 
gress. But  the  court  here,  as  in  the  Genesee  Chief,  al- 
ready cited,  avoid  this  question  by  planting  their  decision 
on  the  maritime  -law,  and  the  grant  to  the  Federal  courts 
of  Admiralty  and  maritime  jurisdiction.  In  this  respect, 
also,  the  City  of  Norwich  is  parallel  to  the  Genesee  Chief, 
and  the  two  should  be  read  together." 

should,  on  giving  up  all  they  had  ventured   in  a  particular  voyage,  be 
relieved  from  any  further  responsibility." 

1  Butler  V.  Boston  &  Savannah  S.  S.  Co.,  130  U.  S.  527  (1889) ;  The 
Epsilon,  6  Bened.  378  (1873).  In  Spring  v.  Haskell,  14  Gray  (Mass.) 
309  (1859),  the  court  followed  the  English  rule,  being  governed  by  the 
Mass.  statute-  So  did  Grier,  J.,  in  Barnes  v.  Steamship  Co.,  25  Legal 
Int.  196;  s.  c,  6  Phila.  479  (1868). 

2  In  The  Ventura  (Lord  v.  Steamship  Co.),  102  U.  S.  541  (1881), 
affi'g  s.  c  4  Sawyer,  292  (1877),  the  act  was  held  valid  as  a  regulation 
of  commerce. 

The  opinion  of  the  Supreme  Court  of  the  United  States  in  The  Atlas, 
93  U.  S.  302  (1876),  implies  that  the  law,  thus  stated,  is  applicable  to 
all  vessels,  whether  foreign  or  domestic. 

Clifford,  J.,  states  it  as  follows:  "  Owners  of  ships  or  vessels  are  not 
liable,  under  existing  laws,  for  any  loss,  damage  or  injury  by  collision, 
if  occasioned  without  their  privity  or   knowledge,   beyond   the    amount 


LIMITATION    BY   THE    LAW    MERCHANT.  9 

The  considerations  thus  far  suggested  lead  inevitably 
to  the  conclusion  that  the  Act  of  1851  ^  is  the  adoption 
of  the  rule  of  the  maritime  law  of  Europe  already  stated, 
as  a  regulation  of  commerce  between  this  country  and 
foreign  nations,  and  of  our  domestic  commerce.  If  it 
were  a  mere  municipal  regulation  it  would  be  limited  in 
its  scope  to  American  vessels  As  a  regulation  of  com- 
merce it  applies  to  all  vessels  which  come  to  our  ports. 

It  was  so  held  by  the  United  States  Supreme  Court  in 
the  Scotland,''^  as  it  had  been  previously  b}^   the   Circuit 


of  tlieir  interest  in  such  ship  or  vessel  and  her  freight   pending  at  the 
time  the  collision  occurred." 

In  a  more  recent  case,  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg. 
Co.,  109  U.  S.  578  (1883),  the  court  held  the  act  to  l)e  constitutional, 
and  say  of  it:  "It  is  not  only  a  maritime  regulation  in  its  character,  but 
it  is  clearly  within  the  scope  of  the  power  given  to  Congress  to  regulate 
commerce." 

'  Re-enacted  in  the  Revised  Statutes,  sections  4281-4287.  Section 
4283  is  printed  erroneously  in  one  particular  in  the  first  edition.  The 
word  "  lost,"  as  printed  in  the  fourth  line  of  that  section,  is  "  loss  "  in 
the  original  act. 

^  105  U.  S.  24  (1881)  ;  rev'g  s.  c  sub  nom.  Dyer  v  National  S.  S. 
Co.,  14  Blatchf.  483  (1878).     In  that  case  the  Supreipe  Court  say  : 

"  Our  law  adopts  the  maritime  rule  of  graduating  the  liability  by  the 
value  of  the  ship  after  the  injury  as  she  comes  back  into  port,  and  the 
freight  actually  earned,  and  enables  the  owners  to  avoid  all  responsibil- 
ity by  giving  up  ship  and  freight,  if  still  in  existence,  in  whatever  con- 
dition the  ship  may  be,  and  with  such  surrender  subjects  them  only 
to  a  responsibility  equivalent  to  the  value  of  the  ship  and  freight  as 
rescued  from  the  disaster. 

"But  whilst  the  rule  adopted  by  Congress  is  the  same  as  the  rule  of 
the  general  maritime  law,  its  efificacy  as  a  rule  depends  upon  the  statute, 
and  not  upon  any  inherent  force  of  the  maritime  law.  As  explained  in 
the  Lottawanna  (21  Wall.  558  [1874]),  the  maritime  law  is  only  so  far 
operative  as  law  in  any  country  as  it  is  adopted  by  the  laws  and  usages  of 
that  country.  This  particular  rule  of  the  maritime  law  had  never  been 
adopted  in  this  country  until  it  was  enacted  by  statute,  and  therefore 
whilst  it  is  now  a  part  of  our  maritime  law  it  is  nevertheless  statute  law, 
and  must  be  interpreted  and  administered  as  such.  Then  does  it  gov- 
ern the  present  case  ?  In  administering  justice  between  parties,  it  is 
essential  to  know  by  what  law  or  Code,  or  system  of  laws,  their  mutual 
rights  are  to  be  determined.  When  they  arise  in  -a  particular  country  or 
State,  they  are  generally  to  be  determined  by  the  laws  of  that  State. 
Those  laws  pervade  and  give  them  their  color  and  legal  effect.  Hence, 
if  a  collision  should  occur  in   British  waters,  at  least  between   British 


lO  THE    MODERN    LAW    OF    CARRIERS. 

Court  for  the  Southern  District  of  New  York,  in  Levin- 
son  V.  The  Oceanic  Steam  Nav.  Co.,  after  very  full  argu- 
ment and  careful  consideration  ^ 

The  American  statute  of  April  29,  1864,"  on  the  rule 
of  the  road  at  sea,  is  an  instance  of  a  similar  adoption 
by  this  country  of  rules  in  reference  to  collisions  which 
had  previously  been  adopted  by  other  maritime  countries, 


ships,  and  the  injured  party  should  seek  relief  in  our  courts,  we  would 
administer  justice  according  to  the  British  law,  so  far  as  the  rights  and 
liabilities  of  the  parties  were  concerned,  provided  it  were  shown  what 
that  law  was.  If  not  shown,  we  would  apply  our  own  law  to  the  case. 
In  the  French  or  Dutch  tribunals,  they  would  do  the  same.  But,  if  a 
collision  occurs  on  the  high  seas,  where  the  law  of  no  particular  State 
has  exclusive  force,  but  all  are  equal,  any  forum  called  upon  to  settle 
the  rights  of  the  parties  would  prima  facie  determine  them  by  its  own 
law  as  presumptively  expressing  the  rules  of  justice;  but  if  the  contest- 
ing vessels  belonged  to  the  same  foreign  nation,  the  court  would  assume 
that  they  were  subject  to  the  law  of  their  nation,  carried  under  their 
common  flag,  and  would  determine  the  controversy  accordingly.  If 
they  belonged  to  different  nations,  having  different  laws,  since  it  would 
be  unjust  to  apply  the  laws  of  either  to  the  exclusion  of  the  other,  the 
law  of  the  forum,  th.it  is  the  maritime  law,  as  received  and  practiced 
therein,  would  properly  furnish  the  rule  of  decision.  In  all  other  cases 
each  nation  will  also  administer  justice  according  to  its  own  laws,  and 
it  Will  do  this  without  respect  of  persons,  to  the  stranger  as  well  as  to  the 
citizen.  If  it  be  the  legislative  will  that  any  particular  privilege  should 
be  enjoyed  by  its  own  citizens  alone,  express  provision  will  be  made  to 
that  effect.  Some  laws,  it  is  true,  are  necessarily  special  in  their  appli- 
cation to  domestic  ships,  such  as  those  relating  to  the  forms  of  owner- 
ship, charter-party  and  nationality;  others  lollow  the  vessel  wherever 
she  goes,  as  the  law  of  the  flag,  such  as  those  which  regulate  the  mutual 
relations  of  master  and  crew  and  the  power  of  the  master  to  bind  the 
ship  or  her  owners.  But  the  great  mass  of  the  laws  are,  or  are  in- 
tended to  be,  expressive  of  the  rules  of  justice  and  right  applicable 
alike  to  all. 

But  it  is  enough  to  say,  that  the  rule  of  limited  responsibility  is  now 
our  maritime  rule.  It  is  the  rule  by  which,  through  the  act  of  Congress, 
we  have  announced  that  we  propose  to  administer  justice  in  maritime 
cases.  We  see  no  reason,  in  the  absence  of  any  different  law  govern- 
ing the  case,  why  it  should  not  be  applied  to  foreign  ships  as  well  as 
to  our  own,  whenever  the  parties  choose  to  resort  to  our  courts  for 
redress.  Of  course  the  rule  must  be  applied,  if  applied  at  all,  as  well 
when  it  operates  against  foreign  ships  as  when  it  operates  in  their 
favor . 

^  Albany  Law  Journal,  Vol.  17,  p.  285  (1878),  and  note. 
^  R.  S.   sect.  4233. 


LIMITATION    BY   THE    LAW    MERCHANT.  II 

and  which  are  applied  by  the  courts  of  America  to  all  col- 
lisions whether  between  foreign  or  American  ships  or 
both.  Indeed  the  jurisprudence  of  this  country  is  full 
of  instances  in  which  our  courts  in  questions  of  maritime 
law  have  followed  the  rule  prevailing  in  continental  Eu- 
rope rather  than  the  English  rule. 

Take,  for  example,  the  decisions  in  reference  to  mem- 
orandum articles,  so  called,  in  a  policy  of  insurance.  The 
rule  on  the  Continent  of  Europe  is  that  when  goods  are 
warranted  "  free  of  particular  average,"  or  "  free  from 
average,  except  general,"  the  insured  cannot  recover  for  a 
total  loss  of  a  part  of  any  particular  lot  of  goods.  The 
English  rule  was  for  a  long  time  different.  But  as  long 
ago  as  1800,  the  Supreme  Court  of  New  York  adopted  the 
Continental  rule,  and  the  decision  was  followed  by  the 
Supreme  Court  of  the  United  States.^ 

It  is  a  very  significant  fact,  that  the  King's  Bench, 
in  Lord  Mansfield's  time,  had  adopted  the  Continental 
rule.  It  deserves  notice  that  the  English  courts  have 
finally  returned  to  the  rule  originally  laid  down  by 
him.^ 

So,  in  Thomas  v.  Osborn,^  the  Supreme  Court,  in 
opposition  to  the  English,  followed  the  Continental  rule 
that  the  master  has  power,  without  a  bottomry  bond,  to 
create  a  lien  on  his  vessel  for  repairs  and  supplies  fur- 
nished in  a  foreign  port.'* 

It  need,  therefore,  excite  no  surprise  that  the  courts  of 
this  country  should  have  refused  to  follow  the  English 
decisions  under  the  statute  of  George  II.  It  was  held  by 
Lord  Stowell  in  the  Carl  Johan,  cited   by  counsel   in  the 


^  2  Arnould  on  Ins.  1038- 1041. 
8  Ralli  V.  Janson,  6  Ellis  &  Bl.  422  (1856). 
'  19  How.  22  (1856). 

*  For  other  instances,  see  tlie  learned  opinion   of  Chancellor  Kent, 
in  Palmer  v.  Lorillard,  16  Johns.  348,  361  (1819). 


12  THE    MODERN    LAW   OF    CARRIERS. 

Dundee,'  that  this  act  was  a  municipal  regulation  only, 
and  had  no  application  to  foreign  vessels,  and  would  not 
be  administered  by  a  Court  of  Admiralty.  Those  courts, 
he  said,  sat  to  administer  the  general  maritime  law,  and 
not  the  local  statutes  of  any  particular  country.  Had 
that  great  man,  who  did  so  much  to  give  clearness  and 
precision  to  the  practice  and  law  of  the  English  Admiral- 
ty, and  whose  native  vigor  has  perhaps  never  been  sur- 
passed in  any  court,  been  as  familiar  with  the  civil  law 
and  the  maritime  law  of  Europe  as  Lord  Mansfield,  the 
decision  in  the  Carl  Johan  would  have  been  different. 
Taking  his  premises  that  his  court  sat  to  administer  the 
general  maritime  law,  finding  the  doctrine  already  ad- 
verted to  a  part  of  that  law,  he  would  have  applied  it  in 
the  case  before  him. 

One  objection  that  was  taken  to  this  view  deserves 
consideration.  Wh}^,  it  was  said,  was  not  this  alleged 
rule  discovered  and  enforced  in  America  before  1851  ? 
Why  was  it  not  pleaded  as  a  defence  in  the  suits  growing 
out  of  the  loss  of  the  Lexington  ?  ^  The  answer  to  this 
last  question  is  obvious.  The  loss  of  the  Lexington  was 
caused  by  negligence  in  her  construction  and  equipment, 
and  to  losses  such  as  this  the  rule  does  not  apply.  It 
does  not  exonerate  ship  owners  from  losses  caused  by 
their  own  negligence.^ 

The  rule  protects  owners  from  ruin,  which  would 
otherwise  overtake  them  from  the  fault  of  their  agents, 


^  I  Hagg.  Adm.  113,  121  (1823);  and  see  The  Girolamo,  3  Hagg. 
Adm.  186  (1834). 

'^  N.  Y.  Steamboat  Co.  v.  Merchants'  Bank,  6  How.  U.  S.  344 
(1848). 

^  "  The  surrender  by  the  owner  of  his  interest  in  the  ship  and 
freight  does  not  relieve  him  from  liability  for  damages  caused  by 
the  inherent  defect  (?'zV^  p7-opre)  of  the  ship.  This  is  really  an  act  of 
his  own  (?/«  fait  personnel)  in  respect  to  which  the  right  to  abandon 
does  not  exist."  Court  of  Cassation,  April  11,  1870;  Journal  du  Palais, 
Table  Complementaire,  Vol.  i,  Title  Navire,  sect.  75. 


LIMITATION    BY    THE    LAW    MERCHANT.  1 3 

without  any  fault  of  their  own.  As  was  said  by  Hull, 
J.,  as  long  ago  as  the  Year  Books,  2  H.  IV,  foL  18, 
p.  6: 

"  This  were  against  all  reason  to  put  blame  or  fault 
upon  a  man  when  there  is  none  in  him,  for  the  negligence 
of  his  servants  cannot  be  said  to  be  his  own." 

It  must  be  remembered  that  disasters  requiring  the 
interposition  of  this  rule  are  comparatively  rare,  and  that 
so  far  as  cargo  is  concerned,  ship  owners  commonly  pro- 
tect themselves  by  exceptions  in  their  bills  of  lading. 
Indeed,  the  fact  that  there  is  no  reported  case  in  this 
country  prior  to  1851,  in  which  a  passenger  sued  for 
injuries  received  by  a  marine  disaster,  is  cogent  evi- 
dence that  the  justice  and  reason  of  the  rule  already 
stated  were  so  manifest  that  no  one  cared  to  challenge  it. 

It  will  be  useful  in  this  connection  to  consider  to 
what  extent  the  courts  of  this  country  have  held  that 
there  is  a  law  merchant,  independent  of  our  local  and 
municipal  jurisprudence,  which  has  become  such  by  the 
general — not  necessarily  the  universal — consent  of  com- 
mercial nations. 

That  there  is  such  a  general  law  merchant,  forming 
part  of  the  jurisprudence  of  this  country,  is.  shown  by  a 
long  series  of  decisions.^ 

'  Watson  V.  Tarpley,  18  Howard,  517  (1855) ;  Carpenter  v.  Ins.  Co., 
16  Peters,  495  (1842);  Gloucester  Ins.  Co.  v.  Younger,  2  Curtis, 
338(1855). 

In  Swift  V.  Tyson.  16  Peters,  i  (1842),  the  court  says,  p.  19  :  "  The  true 
interpretation  and  effect  of  contracts  and  other  instruments  of  a  com- 
mercial nature  are  to  be  sought,  not  in  the  decisions  of  local  tribunals, 
but  in  the  general  principles  and  doctrines  of  commercial  jurisprudence. 
Undoubtedly  the  decisions  of  the  local  tribunals  upon  such  subjects 
are  entitled  to,  and  will  receive,  the  most  deliberate  attention  and  re- 
spect of  the  court,  but  they  cannot  furnish  positive  rules  or  conclu- 
sive authority  by  which  our  own  judgments  are  to  be  bound  up  and 
governed.  The  law  respecting  negotiable  instruments  may  be  truly  de- 
clared in  the  language  of  Cicero,  adopted  by  Lord  Mansfield  in  Luke  v. 
Lyde  (which  it  should  be  noticed  was  a  case  arising  upon  a  bill  of  lad- 
ing), 2  Burr.  R.  882,  887  (1759),  to  be  in  a  great  measure,  not  the  law  of 
a  single  country  only,  Init  of   ihe  commercial  world.     Non  ei it  alia  lex 


14  THE   MODERN    LAW   OF   CARRIERS. 

How   is   this   Law   to    be   Proved?      Whe^ice  does  it 
Arise? — Not,  certainly,  from  any  purely  municipal  reg- 

Romae,  alia  Athenis,  alia  nunc,  alia  postkac,  sed  et  apud  omnes  gentes,  et 
omni  tempore,  una  eademque  lex  obtinebit. " 

The  decision  has  been  repeatedly  followed,  and  is  well  settled  law. 
Meade  v.  Beale,  Taney  Dec.  339  (1848);  Austen  v.  Miller,  5  McLean, 
153(1849);  The  Ship  George,  Olcott,  89  (1845) ;  Pine  Grove  z'.  Talcott, 
19  Wallace,  666  (1873);  Robinson  z'.  Commonwealth  Ins.  Co.,  3  Sumner, 
220  (1838). 

In  the  latter  case  Story,  J.,  says  (p.  225):  "I  am  aware  that  a  rule 
somewhat  different  has  been  laid  down  by  the  Supreme  Court  of  Mas- 
sachusetts, for  whose  judgments  I  entertain  the  most  unfeigned  respect. 
But  questions  of  a  commercial  and  general  nature  like  this,  are  not 
deemed  by  the  courts  of  the  United  States  to  be  matters  of  local 
law  in  which  the  courts  of  the  United  States  are  positively  bound  by 
the  decisions  of  the  State  courts.  They  are  deemed  questions  of 
general  commercial  jurisprudence,  in  which  every  court  is  at  liberty 
to  follow  its  own  opinion,  according  to  its  own  judgment  of  the  weight 
of  authority  and  principle." 

2  Parson's  Marit.  Ins.  207,  and  note,  is  to  the  same  effect.  It  was, 
however,  held  in  an  early  case  in  Michigan — Rossiter  v.  Chester,  i 
Doug.  (Mich.)  154  (1843) — that  the  law  merchant  was  no  part  of  the 
common  law.  But  this  statement  is  not  supported  by  the  best  English 
authorities. 

Blackstone  says  in  his  Commentaries,  Vol.  i,  p.  273 :  "  No  munici- 
pal laws  can  be  sufficient  to  order  and  adjust  the  new,  extensive  and 
complicated  affairs  of  traffic  and  merchandise,  neither  can  they  have  a 
proper  authority  for  this  purpose.  For,  as  these  are  transactions  car- 
ried on  between  subjects  of  independent  States,  the  municipal  laws 
of  one  will  not  be  regarded  by  the  other.  For  which  reason  the  affairs 
of  commerce  are  regulated  by  a  law  of  their  own,  called  the  law  mer- 
chant, or  lex  mercatoria,  which  all  nations  agree  in  and  take  notice 
of." 

So  in  Vol.  4,  p.  67  :  "  In  mercantile  questions,  such  as  bills  of  ex- 
change, and  the  like ;  in  all  the  marine  cases  relating  to  freight,  average, 
demurrage,  insurance,  bottomry,  and  others  of  a  similar  nature,  the  law 
merchant,  which  is  a  branch  of  the  law  of  nations,  is  regarded  and  con- 
stantly adhered  to.  So,  too,  in  all  disputes  relating  to  prizes,  ship- 
wrecks, to  hostages  and  ransom  bills,  there  is  no  other  rule  of  decision, 
but  this  great  universal  law,  collected  from  history  and  usage,  and 
such  writers  of  all  nations  and  languages  as  are  generally  approved  and 
allowed  of." 

That  Courts  of  Admiralty  have  jurisdiction  to  administer  this  gen- 
eral maritime  law  is  equally  well  settled.  Sir  James  Marriott,  Lord 
Stowell's  predecessor,  said  in  the  Columbus,  Collectanea  Juridica,  p. 
75: 

"  The  Court  of  Admiralty  is  a  court  of  mixed  jurisdiction.  It  will 
judge  of  the  custom  or  law  of  the  sea,  the  custom  of  civilized  nations, 
and  the  common  sea  law  of  the  realm." 

Lord  Stowell  declared  the  same  rule  in  the  Carl  Johan,  before  cited, 


LIMITATION    BY    THE    LAW    MERCHANT.  1 5 

ulation.  Not  necessarily  froni  any  international  conven- 
tion. But  by  the  common  consent  of  commercial  na- 
tions. Its  beginning  may  be  hid  in  the  mists  of  antiquity. 
But  each  nation,  as  it  adopts  any  particular  provision  or 
rule,  formulates  its  consent  in  some  way.  France  did  it 
by  the  Ordonnance  of  Louis  XIV.  The  United  States 
did  the  same  by  the  Act  of  185 1.  When  the  consent  is 
thus  formulated,  the  law  becomes  foB  that  nation  the  law 
of  the  sea,  to  be  administered  by  its  courts,  in  reference 
to  all  vessels  trading  to  its  ports.  When  they  come  to  us 
for  our  tradcj  and  seek  the  custom  of  our  merchants,  they 
submit  themselves  to  the  whole  body  of  our  law,  and  are 
entitled  to  its  benefits. 

In  thus  adopting  and  giving  full  force  and  effect  to 
the  rule  limiting  the  liability  of  ship-owners^  the  courts 
of  this  country  have  followed  the  course  of  the  continental 
courts  in  reference  to  the  civil  law.  That  law  is  the  com- 
mon law  of  most  continental  countries.  On  the  subject 
under  consideration  it  agrees  with  the  English  common 
law.  How  was  it  modified  ?  Not  by  a  mere  municipal 
regulation,  but  by  ordinances  or  decrees,  the  precise  an- 
alogue of  our  statute  of  185 1,  recognizing  or  adopting  a 
rule  different  from  that  of  the  civil  law,  and  bringing  the 
country  by  whose  sovereign  it  was  promulgated  into  line 
with  other  commercial  countries,  thus  forming  a  maritime 
law.^ 

There  is  no  novelty  in  thus  applying  a  statute  to  per- 

and  it  has  become  elementary.  In  the  Eagle,  8  Wall.  15  (1868),  it  was 
held  that  there  was  a  maritime  lien  upon  the  offending  vessel  for  damages 
caused  by  a  collision  in  Canadian  waters,  although  the  local  law  gave  no 
such  lien.     See,  also,  the  Milford,  Swabey,  362  (1858). 

1  An  illustration  of  this  is  to  be  found  in  General  Order  253,  of  the 
U.  S.  Navy  Department,  July  16,  1880.  It  begins:  "A  revised  code  of 
'Regulations  for  Preventing  Collisions  at  Sea'  having  been  approved 
by  nearly  all  the  maritime  nations  of  the  world,  and  adopted  by  them 
to  go  into  effect  on  the  ist  of  September,  1880,  thus  becoming  an  in- 
tegral part  of  the  law  of  the  sea,  it  is  hereby  adopted  for  the  naval  serv- 
ice of  the  United  States." 


l6  THE    MODERN    LAW   OF    CARRIERS. 

sons  other  than  the  citizens  of  the  country  bj^  whose  leg- 
islature the  statute  is  enacted.  For  example  many  of 
the  old  and  strict  rules  in  regard  to  corporate  powers 
and  corporate  action  have  ceased  to  be  applicable  to  the 
conditions  of  modern  societ}-,  and  are  no  longer  enforced 
by  the  courts.  In  the  Bank  of  Augusta  v.  Harle^  it 
was  held  that  a  corporation  could  transact  business  be- 
yond the  limits  of  the  jurisdiction  which  created  it,  and 
was  by  necessary  consequence  subject  to  the  laws  of  the 
country  where  it  located  its  offices  and  did  its  business.^ 

Now  that  corporations  have  practically  become  part- 
nerships with  limited  liability,  and  do  business  all  over 
the  world,  it  seems  hard  to  conceive  that  the  point  should 
ever  have  been  seriously  contested. 

In  like  manner  it  is  not  easy  to  give  any  reason  why 
a  corporation  w^hich  does  business  in  a  country  other  than 
that  which  incorporated  it,  and  is  subject  to  the  laws  of 
that  State,  should  not  be  entitled  to  their  benefit. 

It  is  a  general  rule  in  the  construction  of  statutes 
that  "  if  the  law  makes  no  exception  the  court  can  make 
none."^ 


1  13  Peters,  519  (1839). 

^  To  the  same  effect  are  Cowell  v.  Springs  Co.,  100  U.  S.  55  (1879)  ^ 
Lafayette  Ins.  Co.  v.  P'rench,  18  How.  U.  S.  404  (1855);  Dryden  v. 
Grand  Trunk  Railway,  60  Maine,  512  (1872). 

3  Collins  V.  Carman's  Exr.,  5  Md.  503,  533  (1854)  ;  Warfield  v. 
Fox,  53  Penn.  382  (1866);  Beckford  r.  Wade,  17  Vesey,  87  (1805).  So 
in  Demarest  v.  Wynkoop,  3  Johns.  Ch.  142  (1817),  Chancellor  Kent  said: 
"  General  words  in  the  statute  must  receive  a  general  construction,  and 
if  there  be  no  express  exception,  the  court  can  create  none."  See,  also, 
U.  S.  V.  Coombs,  12  Peters,  72  (1838). 

In  construing  this  very  statute,  the  N.  Y.  Commission  of  Appeals 
say  :  "  Where  general  words  are  used  the  courts  are  not  at  liberty  to 
insert  limitations  not  called  for  by  the  sense  or  the  objects,  or  the  mis- 
chiefs of  the  enactment.  Chamberlain  v.  Western  Transportation  Co., 
44  N.  Y.  305,  309  (1870).  And  they  held  that  it  was  to  be  construed 
liberally. 

There  are  many  instances  of  the  application  of  this  rule.  In  the  Mar- 
ianna  Flora,  11  Wheat,  i  (1826),  the  Act  of  March  3,  1819,  chapter  75, 
came  under  consideration.    Section  2  of  that  act  authorized  the  President 


LIMITATION    BY   THE   LAW   MERCHANT.  1 7 

It  is  worthy  of  notice  fhat  in  the  revision  of  the  stat- 
utes of  the  United  States  the  Act  of  1851  is  codified  as 
part  of  title  48:  "Regulations  of  commerce  and  naviga- 
tion," sections  4282-4289.  It  will  be  observed,  on  a  crit- 
ical examination  of  the  sections  of  this  title,  that  they 
apply  to  foreign  as  well  as  to  domestic  vessels,  unless  it  is 
otherwise  expressed.^ 

Section  4274  limits  the  provisions  of  the  title  "relat- 
ing to  the  transportation  of  passengers"  to  United  States 
vessels.  Why  the  necessity  of  this  section,  unless,  if  it 
had  not  been  inserted,  they  would  have  applied  to  all  ves- 
sels ?  Could  it  be  argued  for  a  moment  that  sections 
4278-4279,  regulating  the  transportation  of  nitro-glycer- 

to  empower  United  States  vessels  to  subdue  "any  armed  vessel  or  boat 
.  .  .  which  shall  have  attempted  or  committed  any  piratical  aggres- 
sion .  .  .  upon  any  vessel  of  the  United  States."  A  Portuguese 
vessel  was  seized  by  a  United  States  cruiser,  and  sent  into  port  for  ad- 
judication under  the  provision  of  this  statute.  She  was  libelled  and 
condemned.  On  appeal,  Judge  Story,  delivering  the  opinion  of  the 
court,  said  (p.  39): 

"  It  has,  indeed,  been  argued  at  the  bar  that  even  if  this  attack  had 
been  a  piratical  aggression  it  would  not  have  justified  the  capture  and 
sending  in  of  the  ship  for  adjudication,  because  foreign  ships  are  not  to 
be  governed  by  our  municipal  regulations.  But  the  Act  of  Congress  is 
decisive  on  this  subject.  It  not  only  authorizes  a  capture,  but  a  con- 
demnation in  our  courts  for  such  aggressions,  and  whatever  may  be  the 
responsibility  incurred  by  the  nation  to  foreign  powers  in  executing 
such  laws,  there  can  be  no  doubt  that  the  courts  of  justice  are  bound 
to  obey  and  administer  them." 

So  in  the  case  of  the  Southern  Life  Ins.  Co.  v.  Packer,  17  N.  Y.  51 
(1858),  it  was  held  by  the  N.  Y.  Court  of  Appeals  that  the  Act  of  1850, 
that  "No  corporation  shall  interpose  the  defense  of  usury,"  applied  to 
foreign  as  well  as  domestic  corporations.  The  court  put  the  decision  on 
two  grounds:  i.  There  is  nothing  expressed  in  the  act  from  which 
such  a  limitation  could  be  presumed.  Its  language  is  general.  2.  There 
is  nothing  in  the  purview  of  the  act  from  which  an  intent  to  confine  it 
to  domestic  corporations  could  be  inferred. 

The  pilotage  laws  of  New  York  were  held  to  be  operative  beyond 
the  territorial  limits  of  that  State  so  far  as  commerce  to  and  from  it 
was  concerned.  The  Nevada,  7  Bened.  386  (1874);  Cisco  v.  Roberts, 
36  N.Y.  292  (1867). 

The  same  rule  is  stated  by  Dr.  Lushington  in  the  Milford,  Swabey, 
362  (1858). 

*  Compare  section  4197  with  section  4212. 
2 


1 8  THE   MODERN   LAW   OF   CARRIERS. 

ine  and  prohibiting  such  transportation  upon  passenger 
vessels,  would  not  apply  to  a  British  ship  bringing  this 
dangerous  substance  to  our  ports  ?  Then  why  do  not  the 
seven  following  sections  apply  equally  to  foreign  vessels 
engaged  in  commerce  with  this  country  ?  The  language 
of  the  former  is  no  more  general  than  that  of  the  latter. 

Another  argument  has  been  presented  in  reference  to 
this  subject.  It  is  said  that  the  courts  of  this  country 
ought  not  to  allow  this  limitation  of  liability  in  favor  of 
the  owners  of  a  foreign  vessel,  when  the  laws  of  the  coun- 
try to  which  that  vessel  belongs  recognize  and  enforce  a 
different  rule. 

So  far  as  known,  England  is  the  only  maritime  coun- 
try whose  law  differs  on  this  subject  from  our  ov/n.  But 
it  must  be  remembered  that  under  the  present  provisions 
of  the  English  Merchant  Shipping  Act,  17  and  18  Vict, 
c.  104,  section  403,  it  is  applicable  to  foreign  as  well  as 
English  vessels,  and  that  it  limits  the  liability  by  an  ar- 
bitrary sum,  ^8  per  ton  for  injuries  to  cargo  and  ;^i5  per 
ton  for  injuries  to  passengers.  This  may  be  and  often  is 
a  sum  less  than  the  value  of  the  interest  of  the  owner  in 
the  ship  and  freight  after  the  injury.  A  case  of  limita- 
tion was  heard  in  New  York  in  which  it  was  considerably 
less.^  So  that  the  English  law  now  differs  from  our  own 
only  in  fixing,  for  convenience  sake,  an  arbitrary  limit. 
There  is  a  comity,  a  recognition  by  England,  of  the  rule 
referred  to,  which  goes  far  enough  to  justify  our  courts 
in  applying  our  own  rule  to  English  vessels,  even  if  the 
only  question  were  one  of  comity.^ 

1  The  Star  of  Scotia,  U.  S.  District  Court,  Southern  District  of 
New  York,  Choate,  J.  (1876),  not  reported. 

2  There  is  nothing  unprecedented  in  the  application  in  on,e  court  of 
a  rule  of  damages  different  from  that  which  prevails  in  another.  At 
common  law,  for  example,  a  party  whose  negligence  contributes  to  a 
collision  can  recover  nothing.  In  Admiralty  the  damages  are  divided. 
The  Atlas,  93  U.  S.  302  (1876);  Arctic  Ins.  Co.  v.  Austin,  69  N.  Y.  470 
(1877);  Lord  V.  Hazeltine,  67  Maine,  399  (1877). 

Before  the  passage  of  the  act  referred  to  in  the  text  it  was  held  that 


LIMITATION   BY   THE   LAW   MERCHANT.  1 9 

But  the  question  is  not  one  of  comity.  America  is 
just  as  mucli  interested  as  England  in  the  commerce  be- 
tween the  two  countries,  and  our  right  to  regulate  it  is 
just  as  clear.  If,  in  the  judgment  of  our  Legislature, 
commerce  is  promoted  and  attracted  to  our  ports  by  the 
adoption  of  this  liberal  commercial  regulation,  our  courts 
cannot  refuse  to  carry  out  this  beneficent  policy.^ 

the  owner  of  a  British  ship  could  limit  his  liability  for  damage  done  to 
a  foreign  ship  by  a  collision  on  the  high  seas  within  three  miles  of  the 
British  coast.  General  Iron  Screw  Co.  v.  Schurmanns,  i  Johns.  & 
Hem.  180  (1858).  It  was  held  otherwise  if  the  collision  happened  at  a  dis- 
tance more  than  three  miles  from  the  British  coast.  Cope  v.  Doherty, 
4  K.  &  J.  367  (1858);  s.  c.  on  appeal,  2  De  Gex  &  J.  614  (1858). 

*  The  oral  argument  in  the  Scotland,  105  U.  S.  24  (1881),  was, 
probably,  as  forcible  and  thorough  as  any  that  has  ever  been  had  on  an 
Admiralty  appeal.  The  following  extracts  from  it  and  from  the  collo- 
quy between  the  court  and  counsel  will  not  be  without  interest.  Mr. 
Butler  was  for  the  English  ship-owner,  Mr.  Carter  for  the  libellant. 

Mr.  Butler.  That  these  English  owners  should  go  scot-free  seems 
to  my  friends,  in  the  language  of  Bunyan,  like  grace  abounding  to  the 
chief  of  sinners.  They  want  to  establish  a  doctrine  of  election  by 
which  this  benefit  of  the  Admiralty  law  shall  be  conferred  alone  upon 
American  citizens. 

Bradley,  J.,  to  Mr.  Carter.  You  claim  full  damages  ?  Mr.  Carter. 
Yes. 

Bradley,  J.  By  what  law  ?  Mr.  Carter.  By  our  customary  law  al- 
ways administered  in  our  courts. 

Bradley,  J.     That  is  municipal  law  ?     Mr.  Carter.    Yes. 

Bradley,  J.  Then  why  may  not  our  statutes  apply  to  foreigners? 
Mr.  Carter.  The  body  of  rules  on  which  commercial  nations  unite  may 
be  called  the  general  Admiralty  law.  When  that  concurrence  exists  that 
law  exists.    When  it  does  not,  the  law  does  not  exist. 

Waite,  C.  J.  Does  that  concurrence  exist  in  this  case?-  Mr.  Carter. 
No. 

Waite,  C.  J.  Then  what  law  would  apply  ?  Mr.  Carter.  Our  own 
rule  of  justice.  No  maritime  law  exists.  The  statute  does  not  apply 
and  there  is  no  general  Admiralty  law  on  the  subject. 

Waite,  C.  J.  Are  there  two  rules  in  the  United  States— one  appli- 
cable to  citizens  of  the  United  States,  and  another  to  foreigners'?  Mr. 
Carter.    Yes. 

Waite,  C  J.  Is  there  anything  in  the  statute  to  indicate  that?  Mr. 
Carter.    The  rule  of  construction  already  stated  indicates  it. 

Waite,  C.  J.  Isn't  it  rather  the  inference  that  it  was  intended  to  ap- 
ply to  the  citizens  of  all  countries  when  they  seek  redress  in  the  courts 
of  this  country  % 

Bradley,  J.  Has  any  difficulty  been  raised  since  the  Act  of  Parlia- 
ment was  passed  extending  to  foreign  vessels  ?     Mr.  Carter.    No. 

Bradley,  J.    Then  there  is  no  intrinsic  difficulty  in  the  subject. 


20  THE   MODERN   LAW   OF   CARRIERS. 

The  cases  in  which  it  is  sought  to  apply  the  rule  of 
the  maritime  law  which  has  thus  been  considered  are,  or- 
dinarily, actions  of  tort,  brought  to  obtain  redress  for  in- 
juries, caused  on  the  high  seas  by  the  negligence  of  the 
master  or  other  officer  of  the  vessel  committing  the  tort. 

Indeed,  it  was  for  many  years  a  mooted  point  whether 
the  rule  referred  to  had  any  application  to  actions  brought 
to  enforce  contracts  made  by  the  master,  as  distinguished 
from  actions  to  recover  damages  occasioned  by  his  neg- 
ligence. The  commentators  and  the  courts  of  France 
were  at  variance.  It  was  finally  settled  that  the  rule 
applied  to  both  classes  of  cases.  But  in  practice  its  ap- 
plication is  infrequent,  except  to  protect  the  owner  from 
unlimited  liability  for  the  negligence  of  his  agent.^ 

^  An  account  of  the  controversy  on  this  subject  will  be  found  in 
Bedarride,  du  Commerce  Maritime,  Tome  i,  sects.  270,  271.  Valin  was 
of  opinion  that  the  right  to  limit  the  owner's  liability  extended  only  to 
losses  caused  by  the  misconduct  (delits  or  quasi  delits)  of  the  master 
or  crew.  Emerigon  (Contrat  a  la  Grosse,  chap.  IV,  section  1 1 ,  paragraphs 
I  and  2)  takes  the  ground  that  by  the  maritime  law  the  right  of  limita- 
tion extends  to  breaches  of  a  contract  made  by  the  master.  The  opinion 
of  Emerigon  finally  prevailed,  and  the  matter  was  set  at  rest  in  France 
by  an  amendment  to  the  Code  Napoleon,  adopted  in  1841. 

The  Report  of  M.  Camille  Perier  to  the  Chambre  de  Paris  (Moniteur 
Universel,  23  Mars.  1841)  on  this  subject  will  well  repay  perusal.  A 
copy  is  to  be  found  in  the  Astor  Library,  New  York. 


CHAPTER  II. 

THE  UNITED   STATES   STATUTE. 

The  Act  of  1 85 1,  has  been  re-enacted  without  material 
change  in  the  Revised  Statutes,  sections  4282  to  4289, 
inclusive. 

These  sections  of  the  Revised  Statutes  are  in  pari 
materia  with  the  Act  of  1851,  and  to  be  construed  as 
effecting  no  change  in  the  law,  unless  the  words  of  the 
subsequent  act  require  it.  It  is  settled  after  full  delibera- 
tion and  elaborate  argument  that  no  change  has  been 
made  by  the  revision.^ 

And  the  Statute  should  be  liberally  construed  to  pro- 


^  "  When  the  meaning  is  plain,  the  courts  cannot  look  to  the  Statutes 
which  have  been  revised,  to  see  if  Congress  erred  in  that  revision,  but 
may  do  so  when  necessary  to  construe  doubtful  language  used  in  ex- 
pressing the  meaning  of  Congress.  If,  then,  in  the  case  before  us,  the 
language  of  sect.  4820,  was  fairly  susceptible  of  the  construction  claimed 
by  the  Government  as  well  as  of  the  opposite  one,  the  argument  from 
the  provision  of  the  Statute  as  it  stood  before  the  revision  would  be 
conclusive."     United  States  v.  Bowen,  100  U.  S.  508,  513  (1879). 

"  On  these  differences  of  language,"  said  Mr.  Justice  Blatchford,  in 
Thomassen  v.  Whitwill,  21  Blatchf.  45  ;  s.  c  12  Fed.  Rep.  891  (1882); 
affd.  118  U.  S.  520  (1886),  "it  is  contended  that  the  Revised  Statutes 
exclude  a  limitation  of  the  liability  of  a  part  owner  to  the  value  of  his 
interest  in  the  vessel  and  freight,  and  do  not  provide  for  any  limitation 
short  of  the  interest  of  the  owner  or  owners,  collectively,  in  the  whole 
vessel.  There  is  no  force  in  this  contention.  By  section  i  of  the  Re- 
vised Statutes,  it  is  provided,  that  in  determining  the  meaning  of  the 
Revised  Statutes,  words  importing  the  singular  number  may  extend  and 
be  applied  to  several  persons  or  things,  and  words  importing  the  plural 
number  may  include  the  singular.  It  was  undoubtedly  because  of  this 
general  provision  that  the  language  of  the  Act  of  1851  was  condensed 
in  the  revision.  Read  by  the  light  of  such  general  provision,  and  in 
view  of  the  principles  on  which  the  revision  was  made,  it  must  be  held 
that  the  new  language  in  sections  4283  and  4285,  is  the  result  merely  of 
revision,  simplification,  re-arrangement  and  consolidation,  with  a  view 
to  the  re-enactment  of  the  same  substance  and  meaning." 


22  THE   MODERN   LAW   OF   CARRIERS. 

mote  the  beneficial  end  for  which  it  was  enacted,   i.  e.^  of 
advancing  the  commerce  of  the  country.^ 
Section  4282  is  as  follows  : 

"  No  owner  of  any  vessel  shall  be  liable  to  answer  for 
or  make  good  to  any  person  any  loss  or  damage  which 
may  happen  to  any  merchandise  whatsoever,  which  shall 
be  shipped,  taken  in,  or  put  on  board  any  such  vessel,  by 
reason  or  by  means  of  any  fire  happening  to  or  on  board 
the  vessel,  unless  such  fire  is  caused  by  the  design  or  neg- 
lect of  such  owner."  ^ 

The  true  interpretation  of  this  section  gave  rise  to  a 
conflict  of  opinion  between  the  courts  of  the  States  of  New 
York  and  Massachusetts  and  the  Federal  Courts.  A 
libel  was  filed  by  the  owners  of  the  Oceanus  to  limit  their 
liability  for  the  loss  by  fire  of  the  cargo  of  that  vessel. 
The  court  sustained  the  libel  and  granted  an  injunction 
against  all  proceedings  at  law.  Some  of  the  shippers  had 
brought  an  action  at  law  to  recover  for  the  loss  to  their 
goods.  The  Superior  Court  of  the  city  of  New  York^ 
stayed  all  proceedings  in  this  suit,  but  the  Court  of  Ap- 

1  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578,  589 
(1883). 

Chamberlain  v.  Western  Trans.  Co.,  44  N.  Y.  305  (187 1).  In  this  case 
the  court  say,  p.  309  :  "  This  is  not  in  any  sense  a  penal  statute,  nor  is 
it  in  any  way  derogatory  to  natural  right,  and  hence  I  know  of  no  rule 
of  law  that  requires  that  it  should  be  strictly  construed.  It  is  true  that 
it  changes  the  common  law,  but  there  can  be  no  reason  for  applying  the 
rule  of  strict  construction  to  the  vast  body  of  statute  laws  which  change 
the  common  law.  The  prior  law,  whether  it  be  statute  or  common  law,  is 
to  prevail,  unless  the  subsequent  statute,  by  a  fair  and  proper  construc- 
tion, repeals  or  modifies  it.  This  statute  is  rather  a  remedial  statute. 
It  was  enacted  to  remedy  the  rigor  of  the  common  law,  which  it  was 
deemed  unwise,  on  grounds  of  public  policy,  to  continue.  It  should, 
therefore,  be  construed,  if  not  liberally,  at  least  fairly,  to  carry  out  the 
policy  which  it  was  enacted  to  promote."  To  the  same  effect  is  the 
Warkworth,  9  Prob.  Div.  20  (1884). 

^  This  section  does  not  apply  to  express  companies  who  ship  goods 
on  steam  vessds,  but  do  not  charter  them.  Hill  Mfg.  Co.  v.  Boston  & 
Lowell  R.  R.  Co.,  104  Mass.  122  (1870). 

^  Knowlton  v.  Providence  &  N.  Y.  S.  S.  Co.,  35  N.  Y.  Superior  Ct. 
572  (1873)- 


UNITED   STATES   STATUTE,    SECTION   4282.  23 

peals  reversed  the  order  and  held,^  that  the  effect  of  the 
Statute  was  not  merely  to  limit  the  liability  of  the  ship- 
owner in  case  of  loss  by  fire,  but  to  take  it  away  altogether, 
so  far  as  the  cargo  was  concerned,  unless  the  owner  him- 
self was  at  fault.  It  therefore  held  that  this  defense 
could  be  pleaded  in  any  suit  brought  by  the  shipper, 
and  that  no  proceedings  in  Admiralty  were  necessary  or 
proper.^ 

There  can  be  no  doubt  on  the  language  of  the  Statute, 
that  the  defense,  in  case  of  fire,  is  complete."  The  ques- 
tion therefore  is  merely  in  what  forum  this  defense  shall  be 
tried.  The  advantage  of  the  Admiralty  proceeding  is, 
that  all  parties  claiming  to  recover  can  be  brought  in  and 
the  issue  tried  in  one  suit.  It  is  strictly  analogous  to  a 
bill  in  equity,  in  the  nature  of  a  bill  of  interpleader,  in 
which  all  parties  claiming  an  interest  in  the  subject-matter 
of  the  controversy  are  brought  in.  A  multiplicity  of  suits 
is  thus  avoided,  and  the  whole  matter  determined  in  one 
action.*  And  on  these  grounds  the  Supreme  Court  of  the 
United  States  has  overruled  the  New  York  and  Massa- 
chusetts decisions,  and  sustained  the  Admiralty  jurisdic- 
tion in  such  cases.     And  it  distinctly  held  that  the  pro- 


1  Knowlton  v.  Providence  &  N.  Y.  S.  S.  Co.,  53  N.  Y.  76  (1873). 

2  s.  p.,  Hill  Mfg.  Co.  V.  Providence  &  N.  Y.  S.  S.  Co.,  125  Mass.  292 
(1878) ;  8.  c.  113  Mass.  495  (1873). 

In  Moore  v.  Am.  Trans.  Co.,  24  Howard,  U.  S.  i  (i860),  the 
defense  under  this  Section  of  the  Statute  was  pleaded  in  an  action  at 
law,  and  the  defense  was  sustained  in  the  Supreme  Court.  No  affirma- 
tive proceedings  were  taken  by  the  owner  in  admiralty  or  otherwise. 
This  is  clearly  an  adjudication  that  the  defense  can  be  pleaded  in  an 
action  at  law.  In  this  respect  it  is  analogous  to  the  decision  in  the 
Scotland,  105  U.  S.  24  (1881);   118  U.  S.  507  (1886). 

On  the  other  hand  the  owners  may  still  be  sued  at  law,  and  are 
liable  in  the  action  to  the  extent  of  their  interest  in  the  vessel  and  her 
freight,  for  any  loss  of  or  injury  to  the  cargo.  Spring  v.  Haskel,  14 
Gray  (Mass.),  309  (1859). 

'  Walker  v.  Transportation  Company,  3  Wall.  150  (1865). 

4  Of  this  class  of  cases,  N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  17  N. 
Y.  592  (1858),  is  the  most  notable  example. 


24  THE   MODERN   LAW   OF   CARRIERS. 

ceedings  taken  by  the  Providence  and  New  York  Steam 
Ship  Co.  were  a  bar  to  all  suits  to  recover  damages  for 
losses  caused  by  this  fire.^ 

When  the  cargo  is  discharged  and  placed  upon  a  wharf 
alongside  the  ship,  the  effect  of  the  act  to  take  away  the 
liability  of  the  owner,  for  the  loss  by  fire  of  the  goods  dis- 
charged ceases,  unless  the  goods  are  destroyed  in  conse- 
quence of  the  vessel  taking  fire.^ 

It  will  be  observed  that  this  section  is  limited  to  the  case 
of  ''  loss  or  damage  to  merchandise."  It  does  not,  as  does 
section  4283,  contain  also  the  words  "goods,  property." 
Whether  passenger's  trunks,  not  in  the  custody  of  their 
owners,  but  placed  in  the  baggage  compartment  of  a 
steamer,  can  be  called  merchandise,  is  as  yet  undecided.^ 

It  has  been  held  that  horses  and  trucks  in  custody  of 
teamsters  who,  together  with  their  teams,  take  passage  on 
a  ferry  boat,  are  not  merchandise,  and  that  section  4282 
does  not  apply  to  the  loss  of  such  horses  and  trucks.'^  On 
the  other  hand,  under  the  Statute  of  185 1,  it  was  held 
that  the  ordinary  baggage  of  passengers  on  a  steam- 
boat was  "  goods,"  and  that  the  ship-owner  was  not  liable 
for  its  loss,  caused  by  fire,  without  his  design  or  neglect.^ 

1  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578  (1883). 
At  p.  589  the  court  say  of  the  statute:  "Its  value  and  efificiency  will  also 
be  greatly  diminished,  if  not  entirely  destroyed,  by  allowing  its  adminis- 
tration to  be  hampered  and  interfered  with  by  various  and  conflicting 
jurisdictions." 

'  The  Egypt,  25  Fed.  Rep.  320  (1885)  ;  The  Tangier,  1  Cliff.  396  ; 
s.  c  21  Law  Rep.  612  (1858).  It  was  held  in  Morewood  z^.  Pollock,  i  Ell. 
&  Bl.  743  (1853),  that  the  corresponding  section  of  the  English  Statute 
did  not  apply  to  the  destruction  by  fire  of  goods  on  board  lighters, 
being  transported  to  the  ship.  Under  the  United  States  Statute,  as 
amended  in  1886  (24  U.  S.  Stat,  at  Large,  p.  80),  the  owner  of  the 
lighter  certainly  would  not,  in  such  case,  be  liable. 

3  Heye  v.  North  German  Lloyd,  t^;^  Fed.  Rep.  60  (1887). 

4  The  Garden  City,  26  Fed.  Rep.  766  (1886). 

^  Chamberlain  v.  Western  Trans.  Co.,  44  N.  Y.  305  (187 1)  ;  revg. 
s.  c.  45  Barb.  218  (1866). 


UNITED   STATES  STATUTE,   SECTION  4282.  25 

This  word  "goods"  is  omitted  in  Section  4282  of  tHe  Re- 
vised Statutes.  Yet  it  is  well  settled,  as  sHown  in  the 
previous  part  of  this  chapter  (page  2),  that  the  re-enact- 
ment of  the  law  of  185 1,  in  the  Revised  Statutes,  was  not 
intended  to  change  the  meaning  of  the  former  act.  The 
words,  "any  merchandise  whatsoever,"  should  therefore 
be  considered  as  synonymous  with  "  any  goods  or  mer- 
chandise whatsoever."  This  decision  of  the  Commission 
of  Appeals  is  not  referred  to  in  the  opinion  in  The  Gar- 
den City.^  Moreover  the  decision  of  the  point  was  not 
necessary  in  that  case. 

It  may  therefore  be  said  that  the  meaning  of  the  words 
^'  any  merchandise  whatsoever,"  is  still  unsettled.  The 
expressions  of  the  Commission  of  Appeals  in  the  Cham- 
berlain case  as  to  the  construction  of  the  act  of  1871,  are 
so  similar  to  those  of  the  United  States  Supreme  Court  in 
the  Providence  S.  S.  case  {ante^  p.  22,  note  i),  that  there 
is  reason  to  believe  that  this  court  would  give  to  the  words 
an  ampler  significance  than  is  given  in  the  Garden  City. 

It  is  not  within  the  scope  of  this  treatise  to  examine 
in  detail  the  meaning  of  the  words  "  design  or  neglect," 
used  in  this  section.  The  word  neglect  must  be  consid- 
ered as  synonymous  with  negligence,  and  that  is  so  fully 
and  accurately  treated  by  Shearman  and  Redfield  in  their 
admirable  work  on  Negligence  that  it  is  unnecessary  to 
do  anything  here  except  refer  to  the  decisions  upon  this 
very  section. 

It  is  neglect  on  the  part  of  the  ship-owner  to  omit  to 
maintain  in  proper  order  apparatus  required  by  law  to  be 
kept  on  board  for  the  purpose  of  extinguishing  fires. 

This  section  does  not  limit  the  liability  of  a  ship-owner 
for  neglect  to  secure  for  the  owner  of  baggage,  indemnity 
for  injury  to  it  by  fire  and  water  used  to  extinguish  the 

1  The  Garden  City,  26  Fed.  Rep.  766  (1886). 


26  THE   MODERN   LAW   OF   CARRIERS. 

fire,  which  ought  to  have  been  the  subject  of  a  general 
average  contribution.^ 

Section  4283,  is  as  follows  : 

"  The  liability  of  the  owner  of  any  vessel,  for  any  em- 
bezzlement, loss,  or  destruction,  by  any  person,  of  any 
property,  goods  or  merchandise  shipped  or  put  on  board 
of  such  vessel,  or  for  any  loss,  damage  or  injury  by  col- 
lision, or  for  any  act,  matter  or  thing,  loss,'  damage,  or 
forfeiture,  done,  occasioned,  or  incurred,  without  the  priv- 
ity or  knowledge  of  such  owner  or  owners,  shall  in  no 
case  exceed  the  amount  or  value  of  the  interest  of  such 
owner  in  such  vessel,  and  her  freight  then  pending.'' 

It  has  been  questioned  whether  the  language  of  this 
section  is  broad  enough  to  cover  the  case  of  an  injury  to  the 
person.  No  doubt  the  first  part  of  the  section  is  in  terms 
confined  to  the  case  of  injury  to  the  cargo.  But  the  lan- 
guage that  follows  is  much  broader.  Judge  Benedict  held 
in  the  case  of  the  Bpsilon,®  that  this  covered  injuries  to 
the  person  caused  by  the  explosion  of  a  boiler  on  board  a 
vessel  in  the  East  River.  This  is  clearly  right  on  principle. 
The  maritime  law  knows  no  distinction  in  jurisdiction, 
between  maritime  torts   causing  injury  to  persons   and 

^  Heye  v.  North  German  Lloyd,  33  Fed.  Rep.  60  (1887).  In  this 
case  the  baggage  compartment  took  fire.  It  was  held  that  this  was  a 
risk  to  the  ship,  that  the  injury  to  the  baggage,  caused  by  extinguishing 
the  fire,  was  a  sacrifice  for  the  general  good,  and  therefore  the  subject  of 
a  general  average  contribution,  and  that  the  ship-owner  ought  to  have 
collected  this  for  the  benefit  of  the  owners  of  the  baggage,  and  was 
liable  to  them  for  this  neglect,  though  not  liable  directly  for  the  injury 
done  by  the  fire.  It  was  questioned  also,  whether  damage  by  water, 
used  in  putting  out  the  fire,  came  within  this  section. 

^  This  is  erroneously  printed  "lost  "  in  the  first  edition  of  the  Re- 
vised Statutes.     The  true  text  is  "  loss." 

=  6  Bened.  378  (1873);  s-  P-,  The  City  of  Columbus,  22  Fed.  Rep.  460 
(1884);  zHd.sub  nom.  Butler  v.  Boston  &  Savannah  S.  S.Co.,  130U.  S.  526 
(1889);  The  Seawanhaka,  re  Long  Island,  &c.,  Trans.  Co.,  5  Fed.  Rep. 
599  (1881);  Rounds  V.  Providence  &  N.Y.  S.  S.Co.,  14  R.  I.  344  (1885); 
The  Alpena,  8  Fed.  Rep.  280  (1881).  The  French  law  is  the  same. 
D'Orbigney  contre  Guerin,  Cour  de  Cassation;  Sirey  de  Villeneuve, 
1876,  partie  2,  p.  214.  Couder,  Diet,  de  Droit  Comm.,  tome  i,  p.  412, 
§  66. 


UNITED   STATES   STATUTE,   SECTION  4283.  27 

those  causing  injury  to  cargo.  But  tlie  act  does  not 
apply  to  injuries  done  on  the  land  by  a  tort  committed  on 
the  water.^  It  does  apply  to  injuries  done  wherever  the 
Admiralty  jurisdiction  extends. '^ 

The  liability  of  the  owner  of  a  ship,  by  the  negligence 
of  whose  servants  injury  is  done  to  another  ship,  is 
limited  by  the  Statute,  as  well  as  his  liability  for  injuries 
to  the  cargo,  carried  upon  his  own  vessel.^ 

The  meaning  of  the  important  words  in  the  foregoing 
section,  "without  the  privity  or  knowledge  of  such  owner 
or  owners,"  has  not  been  definitely  determined.  It  will 
be  observed  that  the  words  used  to  express  the  condition 
upon  which  the  owner  is  allowed  to  limit  his  liability  are 
different  from  those  in  the  preceding  section.  Under  the 
terms  of  that  section  the  owner  is  not  liable  in  any 
amount  whatever,  for  any  loss  or  damage  which  may  hap- 
pen to  any  merchandise  on  board  a  vessel,  by  means  of 
fire  happening  to  or  on  board  the  vessel,  "  unless  such  fire 
is  caused  by  the  design  or  neglect  of  such  owner." 

The  opinion  was  at  one  time  expressed,  by  the  New 


*  The  Admiralty  has  no  jurisdiction  in  such  case:  "The  true 
meaning  of  the  rule  of  locality  in  cases  of  marine  torts  was  that  the 
wrong  must  have  been  committed  wholly  on  navigable  waters,  or  at  least 
the  substance  and  consummation  of  the  same  must  have  taken  place 
upon  those  waters  to  be  within  the  admiralty  jurisdiction."  The 
Plymouth,  3  Wallace,  20  (1866),  as  stated  in  Ex  parte  Phenix  Ins.  Co., 
118  U.  S.  610,  618  (1886).  In  this  latter  case  a  writ  of  prohibition  was 
granted  to  restrain  the  District  Court  for  the  Eastern  District  of  Wis- 
consin from  entertaining  jurisdiction  of  the  petition  of  a  ship-owner  to 
limit  its  liability  for  damage  done  by  a  fire  on  land  caused  by  the  negli- 
gent navigation  of  its  vessel.  The  opinion  of  the  District  Court  is  re- 
ported, 26  Fed.  Rep-  713  (1886),  sub  nom.  In  re  Goodrich  Trans.  Co. 
This  case  is  therefore  overruled,  and  so  is  In  re  Vessel  Owners'  Towing 
Co.,  26  Fed.  Rep.  169  (1886).  So  is  also  the  Epsilon,  6  Bened.  378,  381, 
391  (1873);  so  far  as  it  sustains  the  jurisdiction  in  a  limited  liability 
proceeding  to  enjoin  the  prosecution  of  such  claim. 

2  Butler  V.  Boston  &  Savannah  S.  S.  Co.,  130  U.  S.  527  (1889). 

=»  Norwich  Co.  v.  Wright,  13  Wall.  104  (1871);  revg.  s.  c  8  Blatchf. 
14  (1870). 


28  THE  MODERN  LAW  OF  CARRIERS. 

York  Court  of  Appeals,  that  the  words  were  nearly  or 
quite  synonymous.^ 

But  the  Supreme  Court  of  the  United  States  takes  an 
entirely  different  view  of  the  language  of  the  two  sections. 
In  the  case  of  the  Providence  and  New  York  S.  S.  Co.  v. 
Hill  Mfg.  Co.,^  which  has  been  stated  in  the  previous 
part  of  this  chapter,  that  court  considered  the  contention, 
which  had  been  approved  by  the  Supreme  Court  of  Massa- 
chusetts and  by  the  Court  of  Appeals  of  the  State  of  New 
York,  that  the  third  section  of  the  Act  of  185 1,  re-enacted 
in  section  4283  of  the  Revised  Statutes,  had  no  applica- 
tion to  a  loss  by  fire,  and  that  the  first  section  of  the  origi- 
nal act,  re-enacted  in  section  4282  of  the  Revised  Statutes 
was  the  only  provision  in  force  relating  to  this  subject. 
The  Supreme  Court  distinctly  overruled  the  decisions  of 
both  these  courts  on  this  subject,  and  held  that  both  sec- 
tions were  applicable  to  the  case  of  a  loss  b}^  fire,  and  that 
the  owner,  in  case  of  loss  by  fire  not  caused  by  his  design 
or  neglect,  might  still  desire  to  limit  his  liability  to  his 
interest  in  the  vessel  and  her  freight  then  pending,  and 
might  therefore  properly  take  proceedings  under  the  sub- 
sequent section.  The  opinion  of  the  court  on  this  subject 
can  best  be  expressed  in  their  own  language,  which  will 
be  found  in  the  note.^ 

1  Peckham,  J.,  Knowlton  v.  Pro.  &  N.Y.  S.  S.  Co.,  53  N.Y.  76  (1873), 
at  page  84,  says: 

"It  is  claimed  that  this  first  section  is  subject  to  the  third,  and  em- 
braced within  its  provisions.  If  it  were  so  intended  it  is  singular  that 
the  difference  in  the  conditions  of  liability  should  be  so  slight.  They 
are,  in  fact,  substantially  alike — so  near  as  to  evince  no  difference  of 
purpose." 

2  109U.  5.578(1883). 

^  "The  owners  may  not  be  able,  under  the  first  section,  to  show  that 
it  happened  without  any  neglect  on  their  part,  or  what  a  jury  may  hold 
to  be  neglect;  whilst  they  may  be  very  confident  of  showing,  under  the 
third  section,  that  it  happened  without  their  'privity  or  knowledge.' 
The  conditions  of  proof,  in  order  to  avoid  a  total  or  a  partial  liability 
under  the  respective  sections,  are  very  different."  Providence  &  N  Y. 
S.  S.  Co.  V.  Hill  Mfg.  Co.,  109  U.  S.  578,  602  (1883). 


UNITED   STATES   STATUTE,   SECTION  4283.  29 

It  would  therefore  seem  to  be  clear  that  the  Supreme 
Court  at  least  inclined  to  the  opinion,  that  there  might  be 
a  neglect,  imputable  to  the  owner  under  section  4282, 
which  could  not  yet  be  said  to  have  caused  a  loss  with  his 
"  privity  or  knowledge "  under  section  4283.  The  ques- 
tion therefore  recurs:  what  is  meant  by  these  latter 
words  ? 

In  the  first  place  it  would  seem  to  be  clear,  in  the  case 
of  a  corporation,  that  there  are  some  officers  of  such  cor- 
poration whose  privity  or  knowledge,  within  the  meaning 
of  this  statute,  must  be  said  to  be  the  privity  and  knowl- 
edge of  the  corporation  itself.  The  Supreme  Court  of 
Massachusetts  has  held  distinctly  that  the  acts,  intentions 
and  neglects  of  the  president  and  directors  of  a  corpora- 
tion are  those  of  the  corporation  itself^ 

It  is  true  that  the  decision  in  this  case  was  reversed 
by  the  U.  S.  Supreme  Court.  But  the  reversal  was  not  at 
all  for  error  in  the  proposition  thus  stated.  This  is  en- 
tirely in  accord  with  the  reasoning  of  the  U.  S.  Supreme 
Court  in  a  prior  case,^  and  is  believed  to  express  a  correct 
proposition.  It  is  entirely  in  harmony,  also,  with  the  de- 
cisions of  courts  in  actions  for  negligence,  and  in  the  de- 
termination of  the  validity  of  clauses  of  exemption  in  bills 
of  lading. 


1  Hill  Mfg.  Co.  V.  Prov.  &  N.  Y.  S.  S.  Co.,  1 13  Mass.  495  (1873).  At 
page  500,  Gray,  C  J.,  says: 

"If  the  owners  are  a  corporation,  the  president  and  directors  are  not 
merely  the  agents  or  servants,  but  the  representatives  of  the  corpora- 
tion; and  the  acts,  intentions  and  neglects  of  such  officers  are  those  of 
the  corporation  itself  (21  How.  202,  210,  211  [1858];  3  Allen,  433,  441 
[1858]).  To  hold  otherwise  would  be  wholly  to  exempt  all  steamship 
companies  from  loss  by  fire  of  goods  on  board  their  ships,  however  care- 
lessly or  imperfectly  they  built  their  furnaces  and  engines.  Such  a  con- 
struction is  too  novel  and  unreasonable  to  be  entertained." 

2  Philadelphia,  W.  &  B.  R.  R.  v.  Quigley,  21  How.  U.  S.  202 
(1858),  held  that  a  corporation  which  is  impersonal  can  only  act 
through  agents,  and  is  liable  for  torts  committed  by  the  directors  in  the 
course  of  the  business  of  the  company,  e.  g.,  a  libel  published  by  them 
during  an  investigation  into  its  affairs. 


30  THE   MODERN   LAW   OF   CARRIERS. 

In  the  former  class  of  cases  it  is  well  settled  that 
while  a  master  is  not  liable  to  a  servant  for  injuries 
caused  by  the  negligence  of  a  fellow-servant,  yet  that 
this  rule  does  not  extend  so  far  as  to  exempt  the  mas- 
ter from  liability  for  failure  to  perform  a  duty  which  the 
law  itself  devolves  upon  him.  Among  these  duties  is  that 
of  supplying  the  servant  with  apparatus  or  machinery 
reasonably  safe  for  his  use  in  the  work  in  which  he  is  em- 
ployed.^ 

But  still  the  distinction  between  these  actions  for  neg- 
ligence, and  cases  arising  under  the  Limited  Liability 
Act,  is  manifest.  In  the  former  the  negligence  of  the 
agent  is  imputed  to  the  principal ;  in  the  latter  it  is  not.^ 
The  principal  is  not  liable  for  loss  incurred  "without  his 
privity  or  knowledge."  These  words  point  to  a  fault,  per- 
sonal to  the  principal  as  distinguished  from  the  negli- 


^  Hough  z'.  Railway  Co.,  looU.  S.  215  (1879).  At  page  220,  the  court 
say:  "The  true  view  is  that,  as  corporations  can  act  only  through  super- 
intending officers,  the  negligences  of  those  officers,  in  respect  to  other 
servants,  are  the  negligences  of  the  corporation."  To  the  same  effect 
are  the  New  York  cases.  "  The  master  is  liable  to  his  servant  for  any 
injury  happening  to  him  from  the  misconduct  or  personal  negligence  of 
the  master,  and  this  negligence  may  consist  in  the  employment  of  unfit 
and  incompetent  servants  and  agents,  or  in  the  furnishing  for  the  work 
to  be  done,  or  for  the  use  of  the  servant,  machinery  or  other  implements 
and  facilities  improper  and  unsafe  for  the  purposes  to  which  they  are  to 
be  applied."  Wright  v.  N.  Y.  Cen.  R.  R.,  25  N.  Y.  565  (1862).  Loughlin 
V.  State,  105  N.  Y.  159  (1887).  At  page  162,  the  court  say:  "The  mas- 
ter is  sometimes  responsible  for  the  negligent  act  of  one  servant  causing 
injury  to  a  co-servant.  But  this  liability,  when  it  exists,  does  not  rest 
upon  the  doctrine  of  respondeat  superior,  but  solely  upon  the  ground 
that  in  the  particular  case  the  co-servant  whose  act  or  neglect  caused 
the  injury  was,  by  the  appointment  of  the  master,  charged  with  the  per- 
formance of  duties  which  the  master  was  bound  to  perform  for  the  pro- 
tection of  his  servants,  a  failure  to  perform  which,  or  a  negligent  per- 
formance of  which  by  a  servant  delegated  to  perform  them,  is  regarded 
in  law  the  master's  failure  or  negligence,  and  not  merely  the  failure  or 
negligence  of  the  co-servant." 

2  Walker  v.  Transportation  Co.,  3  Wall.  150  (1865);  The  Whistler, 
2  Sawy.  348  (1873).  These  were  cases  of  loss  by  fire.  Wilson  v.  Dick- 
son, 2  Barn.  &  Aid.  2,  13  (1818);  The  Warkworth,  9  Prob.  Div.  20 
(1883). 


UNITED   STATES   STATUTE,   SECTION  4283.  31 

gence  of  the  agent.  The  decisions  in  negligence  cases 
are,  therefore,  not  controlling  in  questions  arising  under 
the  Limited  Liability  Statute.^ 

In  cases  arising  under  bills  of  lading  containing 
exemptions  from  liability  for  certain  specific  risks,  it  has 
uniformly  been  held  that  if  the  real  cause  of  the  loss  was 
the  insufficient  construction,  equipment  or  stowage  of 
the  vessel,  the  owner  would  be  liable,  and  that  in  such 
case  the  negligence  causing  the  loss  was  his  negligence, 
and  imputable  distinctly  to  him."^ 


^  Craig  V.  Continental  Ins.  Co.,  26  Fed.  Rep.  798  (1886).  In  this 
case  it  was  held  that  the  negligence  of  the  wrecking  agent  of  an  insur- 
ance company,  who  ordered  a  wreck  to  be  towed  into  port  without  suf- 
ficient previous  examination,  could  not  be  said  to  be  with  the  privity  or 
knowledge  of  the  company  itself. 

2  The  Hadji,  Circuit  Court,  S.  D.  New  York,  20  Fed.  Rep.  875,  878 
(1884);  affg.  16  Fed.  Rep.  861  (1883). 

Wallace,  J.  "It  is  the  duty  of  a  common  carrier  by  water  to  provide 
a  vessel  tight,  stanch  and  fit  for  the  employment  for  which  he  holds  it 
out  to  the  public.  Ang.  Carr.,  sect.  173.  The  breach  of  this  duty  is  the 
personal  default  of  the  vessel  owner.  Lyon  v.  Wells,  5  East,  428  (1804). 
The  loss  sustained  by  the  libelants,  therefore,  arose  from  the  carrier's 
own  negligence." 

In  s  c.  in  the  District  Court,  16  Fed.  Rep.  861,  864,  865  (1883),  the 
court  say: 

"  The  damage  to  the  goods  on  board  the  Hadji  did  not  arise  from 
any  peril  of  the  sea  or  dangers  of  navigation,  nor,  properly  considered, 
from  anything  external  to  the  ship  herself.  It  arose  exclusively  from 
the  insecure  and  insufficient  structure  or  repair  of  the  vessel.  The 
damage  was  not  from  sea-water  taken  in  through  stress  of  weather  or 
perils  of  the  voyage,  but  from  the  faulty  construction  of  the  tanks, 
whereby  the  water  used  as  ballast  escaped  and  injured  the  cargo.  The 
character  of  the  defects,  as  disclosed  by  the  evidence,  shows  that  they 
were  such  as  should  have  been  guarded  against  in  the  construction  of 
the  vessel,  or  ascertained  in  her  repairs  and  equipment  for  the  voyage. 
They  were  such  defects  as  made  her  unseaworthy  for  the  safe  transpor- 
tation of  goods,  and,  as  the  immediate  and  proximate  cause  of  the  loss, 
they  were  not  within  the  ordinary  risks  of  marine  insurance.  Arn.  Ins. 
775 ;  Copeland  v.  N.  E.  Marine  Ins.  Co.,  2  Mete  432  (1841) ;  Gen.  Mut. 
Ins.  Co.  V.  Sherwood,  14  How.  (U.  S.)  361  (1852).  It  is  impossible,  as 
it  seems  to  me,  not  to  hold  that  this  constitutes,  in  l^w,  negligence  as  re- 
spects her  seaworthiness  and  proper  equipment  for  the  voyage,  for  which 
her  owners  must  be  held  answerable.  Clifford,  J.,  in  Richards  v.  Han- 
sen, I  Fed.  Rep.  54,  58,  62  (1879)."     Lyon  v.  Wells,  5  East,  428  (1804). 

In  this  case  yarn  was  shipped  on  a  lighter  which  turned  out  to  be 


32  THE   MODERN   LAW   OF   CARRIERS. 

Other  cases  on  this  subject  are  considered  in  the  first 
section  of  the  fourth  chapter.  It  is  believed  that  their 
reasoning  is  applicable  to  the  true  construction  of  the 
words  under  consideration.  Such  a  construction  would 
tend  materially  to  increase  the  safety  of  vessels  going  to 
sea,  and  of  the  cargo  and  persons  on  board.  It  is  possible 
for  owners,  by  the  use  of  proper  precautions,  to  provide  a 
seaworthy  vessel.  Where  there  are  statutory  require- 
ments as  to  her  equipment  or  construction,  these  can  be 
observed,  and  the  fact  whether  or  not  they  have  been  ob- 
served can  generally  be  discovered  before  she  sails  upon 
her  voyage.  Still  there  may  be  a  secret  defect,  which 
could  not  be  discovered  by  the  exercise  of  reasonable  care. 
For  loss  occasioned  by  such  a  cause  the  owner  should 
still  be  able  to  limit  his  liability.  Yet  it  cannot  be  said 
that  there  is  any  reported  decision  precisely  in  point  up- 
on this  subject.  The  nearest  approach  to  such  a  decision 
is  to  be  found  in  the  case  of  The  Ventura,  decided  in  the 
U.  S.  Circuit  Court  for  the  District  of  California,  and  af- 
firmed by  the  Supreme  Court  of  the  United  States.^ 

leaky,  and  the  yarn  was  injured.  Held  that  owner  was  liable  for  full 
amount  of  loss,  even  assuming  the  validity  of  a  notice  that  he  would 
not  be  liable  for  any  loss  except  from  negligence  of  master  or  crew,  and 
then  only  to  the  extent  of  lo  per  cent.  The  law  implies  a  promise  that 
the  vessel  shall  be  tight  and  capable  of  carrying  the  cargo.  The  court 
said  that  when  she  is  leaky,  "  this  we  consider  as  personal  neglect  of  the 
owner,  or  more  properly  as  a  non-performance  on  his  part  of  what  he 
had  undertaken  to  do,  viz.,  to  provide  a  fit  vessel  for  the  purpose." 
To  the  same  effect  is  Kopitoff  v.  Wilson,  34  Law  Times  (N.  S.),  677 
(1876). 

1  Lord  V.  Goodall  Co.,  4  Sawyer,  292  (1877) ;  affd.  sud  710m.  Lord 
V.  S.  S.  Co.,  102  U.  S.  541  (1881).  The  report  of  the  decision  of  the 
Supreme  Court  does  not  touch  this  question  in  any  way,  but  passes 
simply  on  the  constitutionality  of  the  act,  when  applied  to  vessels  on  a 
voyage  from  one  port  to  another  port  of  the  same  State.  Nor  did  the 
facts  of  that  case  require  the  expression  of  an  opinion  upon  the  point 
under  consideration,  for  the  injury  there  did  not  happen  from  any  de- 
fect in  the  construction  of  the  machinery.  But,  nevertheless,  Mr.  Jus- 
tice Sawyer,  in  the  Circuit  Court,  expresses  his  opinion  as  to  the  mean- 
ing of  the  statute  in  the  following  language,  which  seems  to  the  author 
to  be  the  best  statement  of  its  meaning  that  has  yet  appeared: 


UNITED  STATES  STATUTE,  SECTION   4283.  33 

In  the  absence  of  any  authoritative  decision  on  the 


"As  used  in  the  statute,  the  meaning  of  the  words  'privity  or  knowl- 
edge' evidently  is  a  personal  participation  of  the  owner  in  some  fault,  or 
act  of  negligence  causing  or  contributing  to  the  loss,  or  some  personal 
knowledge  or  means  of  knowledge,  of  which  he  is  bound  to  avail  himself, 
of  a  contemplated  loss,  or  of  a  condition  of  things  likely  to  produce  or  con- 
tribute to  the  loss,  without  adopting  appropriate  means  to  prevent  it. 
There  must  be  some  personal  concurrence,  or  some  fault  or  negligence 
on  the  part  of  the  owner  himself,  or  in  which  he  personally  participates, 
to  constitute  such  privity,  within  the  meaning  of  the  act,  as  will  exclude 
him  from  the  benefit  of  its  provisions.  (3  Wall  153  [1865];  113  Mass  499 
[^^73]-)  It  is  the  duty  of  the  owner,  however,  to  provide  the  vessel  with 
a  competent  master  and  a  competent  crew,  and  to  see  that  the  ship,  when 
she  sails,  is  in  all  respects  seaworthy.  He  is  bound  to  exercise  the  utmost 
care  in  these  particulars — such  care  as  the  most  prudent  and  careful 
men  exercise  in  their  own  matters  under  similar  circumstances  ;  and  if, 
by  reason  of  any  fault  or  neglect  in  these  particulars,  a  loss  occurs,  it  Is 
with  his  privity,  within  the  meaning  of  the  act.  But  the  owner,  under 
this  act,  is  not  an  insurer.  If  he  exercises  due  care  in  the  selection  of 
the  master  and  crew,  and  a  loss  afterwards  occurs  from  their  negligence, 
without  any  knowledge  or  other  act  or  concurrence  on  his  part,  he  is 
exonerated  by  the  statute  from  any  liability  beyond  the  value  of  his  in- 
terest in  the  ship  and  the  freight  then  pending.  So,  also,  if  the  owner 
has  exercised  all  proper  care  in  making  his  ship  seaworthy,  and  yet 
some  secret  defect  exists  which  could  not  be  discovered  by  the  exercise 
of  such  due  care,  and  the  loss  occurs  in  consequence  thereof,  without 
any  further  knowledge  or  participation  on  his  part,  he  is  in  like  manner 
exonerated,  for  it  cannot  be  with  his  'privity  or  knowledge,'  within  the 
meaning  of  the  act,  or  in  any  just  sense,  and  the  provision  is  that  '  The 
liability  of  the  owner  .  .  .  for  any  act,  matter  or  thing,  loss,  etc., 
.  .  .  occasioned  without  the  privity  or  knowledge  of  such  owner  or 
owners  shall,  in  no  case,  exceed  the  amount  or  value  of  the  interest  of 
such  owner  in  such  vessel  and  her  freight  then  pending.'  This  language 
is  broad,  and  takes  away  the  quality  of  warranty  implied  by  the 
common  law  against  all  losses  except  by  the  act  of  God  and  the  Public 
Enemy." 

In  a  case  in  the  Supreme  Court  of  the  State  of  New  York,  Chisholm 
V.  Northern  Transportation  Co.,  61  Barb.  363,  390  (1872),  the  court  con- 
sidered this  question,  and  Mr.  Justice  Talcott,  who  delivered  the  opinion, 
expressed  the  following  views: 

"While  it  is,  perhaps,  true  that  any  defect  in  the  construction  or  fit- 
ting of  the  ship  and  its  appurtenances,  by  means  whereof  loss  or  dam- 
age is  occasioned,  is  to  be  attributed  to  the  negligence  of  the  owner, 
notwithstanding  the  construction  which  the  Federal  Court  has  put  upon 
the  exemption  in  the  first  section,  yet  even  in  that  case  the  owner  is 
only  liable  to  the  value  of  his  interest  in  the  ship  and  freight,  unless  he 
has  knowledge  of,  or  is  privy  to,  the  defect-"  This  case  did  not  call  for 
the  expression  of  an  opinion  on  this  subject.  It  was  an  action  at  law 
to  recover  damages  caused  by  fire.     And  the  opinion  thus  expressed 


34  THE   MODERN   LAW   OF   CARRIERS. 

subject,  we  naturally  seek  for  ligHt  from  the  continental 
and  English  authorities. 

It  was  held  by  the  French  Court  of  Cassation,  in  1870, 
that  the  owner  had  no  right  to  limit  his  liability  for  a  loss 
occasioned  by  the  intrinsic  weakness  or  insufficiency  of 
the  ship  itself,  and  that  this  was  his  personal  fault,  in  re- 
spect of  which  the  right  to  abandon  the  vessel  did  not  ex- 
ist.' 

The  English  statutes  on  this  subject  originally  used 
the  same  expression — "privity  or  knowledge" — as  that 
in  the  American  statute,  but  no  case  has  been  found 
in  which  those  words  were  considered.  The  words  were 
subsequently  altered  so  as  to  read  "  without  their  actual 
fault  or  privity."^ 

Under  this  amended  statute,  it  has  been  held  that  the 
owner  may  limit  his  liability  for  a  defect  in  navigation 

can  not  be  considered  as  entitled  to  the  same  weight  as  that  of  Mr.  Jus- 
tice Sawyer. 

In  the  Ella,  8  Am.  Law  Reg.  206  (i860),  it  was  held  by  the  District 
Court  of  South  Carolina  that  a  loss  caused  by  unseaworthiness  of  the 
vessel  was  incurred  "  with  the  privity  or  knowledge  of  the  owner."  But 
this  case  held  that  the  Act  of  185 1  did  not  apply  to  the  owner's  con- 
tract liability.  In  this  respect  it  is  overruled,  and  on  the  other  point 
can  hardly  be  considered  as  controlling. 

^  Couder  Diet,  de  Droit  Commercial,  vol.  i,  p.  413,  title  Armateur, 
sect.  75.  "  II  faut  egalement  rattacher  au  meme  principe  la  solution  qui 
decide  que  le  proprietaire  respond  indefiniment  des  consequences  du 
vice  propre  du  navire;  il  y  a  la,  en  effet,  un  fait  personnel,  au  regard  du- 
quel  la  faculte  d'abandon  n'existe  point." 

Couder  cites  some  conflicting  decisions  on  this  subject  in  the  tri- 
bunals of  first  instance.  But  it  would  appear  to  be  set  at  rest  in  France 
by  a  decision  of  the  Court  of  Cassation,  rendered  April  11,  1870,  which 
he  cites.  He  does  not  give  its  title,  and  whether  it  is  the  same  as  the 
following  decision,  reported  in  full  in  the  Journal  du  Palais  for  1870,  I 
am  unable  to  ascertain. 

Arnaudin  v.  Adm.  de  la  Marine,  Journal  du  Palais  (1870),  p.  633. 
The  Court  of  Rennes,  referring  to  Article  216  of  the  Code  du  Com- 
merce, says: 

"Que  le  premier,  concernant  I'abandon,  n'accorde  cette  faculte  a 
I'armateur  que  pour  lui  permettre  de  s'affranchir  de  la  responsabilite 
des  faits  de  son  capitaine  et  nullejnent  de  ses  obligations  personnelles." 
This  was  affirmed  in  the  Court  of  Cassation,  Ibid,  p.  634. 

2  102  Stat,  at  Large,  435;  25  and  26  Vict.,  chap.  63,  sect.  54. 


UNITED  STATES  STATUTE,   SECTS.   4283,   4286.         35 

caused  by  the  negligence  of  some  person  on  board  tlie 
ship,  which  "consisted  in  putting  a  screw  wrongly  or 
carelessly  into  the  steam  steering-gear."  ^  In  other  words, 
such  negligence  happened  without  the  actual  fault  or 
privity  of  the  owner. 

There  can  be  no  doubt  that  "  the  owner  is  not  liable 
beyond  his  interest  in  the  vessel  and  her  freight,  for  the 
misconduct  of  the  officers  and  mariners  of  the  vessel,  in 
which  he  does  not  participate  personally."^ 

Section  4286  is  as  follows  : 

"The  charterer  of  any  vessel,  in  case  he  shall  man, 
victual  and  navigate  such  vessel  at  his  own  expense,  or  by 
his  own  procurement,  shall  be  deemed  the  owner  of  such 
vessel  within  the  meaning  of  the  provisions  of  this  Title 
relating  to  the  limitation  of  the  liability  of  the  owners  of 
vessels ;  and  such  vessel,  when  so  chartered,  shall  be  liable 
in  the  same  manner  as  if  navigated  by  the  owner  there- 
of." 

A  very  singular  question  has  arisen  as  to  the  meaning  - 
of  the  words  "owner"  in  section  4282,  and  "charterer" 
in  section  4286.  A  railroad  company  contracted  to  deliver 
goods  at  a  point  beyond  the  terminus  of  its  line,  and  in 
performance  of  this  contract  delivered  them  to  a  connect- 
ing line  of  steamships.  While  in  the  possession  of  this 
line,  and  on  board  one  of  its  ships,  they  were  destroyed 
by  fire,  without  the  design  or  neglect  of  the  first  carrier. 
It  was  held  that  the  first  carrier  was  not  the  owner  or 
charterer  of  the  vessel  on  which  the  loss  occurred,  and 
therefore  not  entitled  to  the  benefit  of  the  act.^ 

1  The  Warkworth,  9  Prob.  Div.  20  (1883);  affd.  Ibid,  145  (1884); 
s.  c.  51  Law  Times  Rep.  558. 

It  is  obvious, from  the  report  of  this  case,  that  the  defect  was  not  in  the 
original  construction.  Indeed,  the  Master  of  Rolls,  at  p.  146  of  the  Re- 
port, says  that  if  the  defect  had  been  in  the  ship  when  she  was  construct- 
ed, but  was  latent,  and  not  discoverable  before  the  accident,  the  ship- 
owner would  not  have  been  liable  at  all,  irrespective  of  the  statute. 

2  Walker  v.  Western  Transp.  Co.,  3  Wall.  150  (1865). 

3  Rice  V.  Ontario  S.  Co.,  56  Barb.  (N.  Y.)  384  (1869) ;  Hill  Mfg.  Co. 
V.  Boston,  &c.  R.  R.,  104  Mass.  122  (187.0). 


30  THE    MODERN   LAW   OF   CARRIERS. 

This  decision  seems  to  be  warranted  by  a  strict  con- 
struction of  the  terms  of  the  contract  Yet  it  presents 
the  singular  anomaly  of  making  the  carrier  on  whose 
line  the  loss  did  not  occur  liable,  while  the  carrier  on 
whose  line  it  did  occur  is  discharged.  Contracts  b}^  one 
carrier  to  transport  goods  or  passengers  to  a  point  beyond 
its  own  line,  on  what  is  known  as  a  through  bill  of  lading, 
are  common.  Their  validity  is  now  well  settled.  It  has 
been  held  that  unless  there  is  some  limitation  to  the  con- 
trary in  the  contract,  the  carrier  making  it  is  liable  for  a 
loss  caused  b}'  the  negligence  of  the  connecting  carrier.^ 

It  would  seem  probable  that  if  this  question  should 
again  arise  and  be  thoroughly  discussed,  it  would  be  held 
that  the  carrier  issuing  a  through  bill  of  lading  would  be 
an  owner  of  the  vessels  engaged  in  performing  the  through 
contract,  within  the  meaning  of  section  4282.  Certainly 
it  would  not  be  contended  that  the  statute  is  applicable 
only  to  the  registered  owner  of  a  vessel.  The  beneficial 
owner  is  liable  for  supplies  furnished  the  ship.  The 
registered  owner,  if  he  have  no  beneficial  interest  in  the 
ship,  is  not.  In  other  words,  the  beneficial  owner  is  treated 
as  the  real  owner  to  all  intents  and  purposes,  except  so 
far  as  the  requirements  of  the  registration  acts  are  con- 
cerned." And  by  parity  of  reason  it  would  seem  just  to 
hold  that  a  carrier  who  participates  in  the  earnings  of  a 
vessel  forming  part  of  a  through  line,  and  has  the  right  to 
contract  for  transportation  upon  her,  is  owner  pro  hac  vice^ 
and  within  the  equity  of  the  Act  of  Congress. 

It  is  very'  common  to  provide  in  these  through  bills  of 
lading  that  each  carrier  shall  be  liable  only  for  loss  or 
damage  occurring  on  his  own  line.  Under  such  a  contract 
the  question  under  consideration  could  not  arise. 

Sections  4284  and  4285  relate  to  the  legal  proceedings 

'  Ante^  p.  35,  n.  3;  post,  ch.   13,  sect.  3;  Quimby  v.  Vanderbilt,  17 
N.  Y.  306  (1858);  Insurance  Co.  v.  Railroad  Co.,  104  U.  S.  146  (1881). 
*  Macy  V.  Wheeler,  30  N.  Y.  231  (1864). 


UNITED  STATES  STATUTE,   SECTION  4287.  37 

to  be  taken  by  tbe  owner  in  order  to  obtain  the  benefit  of 
the  statute,  and  will  be  considered  in  the  third  chapter. 
Section  4287  is  as  follows : 

"  Nothing  in  the  five  preceding  sections  shall  be  con- 
strued to  take  away  or  affect  the  remedy  to  which  any 
party  may  be  entitled,  against  the  master,  of&cers,  or  sea- 
men, for  or  on  account  of  any  embezzlement,  injury,  loss 
or  destruction  of  merchandise,  or  property,  put  on  board 
any  vessel,  or  on  account  of  any  negligence,  fraud,  or 
other  malversation  of  such  master,  ofifi.cers,  or  seamen,  re- 
spectively, nor  to  lessen  or  take  away  any  responsibility 
to  which  any  master  or  seaman  of  any  vessel  may  by  law 
be  liable,  notwithstanding  such  master  or  seaman  may  be 
an  owner  or  part  owner  of  the  vessel." 

Bven  if  the  master  be  a  part  owner,  and  the  loss  or 
damage  be  caused  by  his  negligence,  so  that  the  right  of 
action,  preserved  by  this  section,  exists  against  him,  the 
other  part  owners  are  not  thereby  rendered  liable,  if  the 
loss  or  damage  be  occasioned  without  their  privity  or 
knowledge/  In  such  case  it  has  been  held  that  no  right 
of  action  exists  against  the  vessel  on  which  a  fire  takes 
place,  but  that  the  remedy  is  solely  in  personam  against 
the  negligent  part  owner.^ 

If  a  part  owner  is  on  board,  and  has  taken  part  in  the 
navigation  of  the  vessel,  but  is  asleep  at  the  time  of  the 
negligence   which   caused   the   injury,   it  not  being  his 

^  Re  Leonard,  14  Fed.  Rep.  53  (1882);  Wilson  v.  Dickson,  2  Barn. 
&  Aid.  2  (1818).  This  was  an  action  at  common  law  against  the  own- 
ers.    Judgment  was  rendered  in  favor  of  all  except  the  captain. 

The  Spirit  of  the  Ocean,  i  Br.  &  Lush.  336  (1865);  s.  c.  34  Law 
Jour.  Adm.  74;  The  Obey,  L.  R.  i  Adm.  102  (1866). 

^  The  Bark  Whistler,  2  Sawy.  348  (1873).  This  case  was  de- 
cided under  the  peculiar  provisions  of  Section  i  of  the  Act  of 
1 85 1.  In  a  case  where  the  damage  was  by  collision,  Dr.  Lushing- 
ton  held  that  the  interest  of  all  the  owners  was  properly  libelled 
in  rem,  but  that  the  Admiralty  would  not  make  a  decree  against  the 
master,  who  was  a  part  owner,  and  whose  negligence  caused  the  col- 
lision, for  the  difference  between  the  amount  of  the  loss  and  th^  value 
of  the  offending  vessel  and  her  freight.  The  Volant,  i  \V.  Rob.  383 
(1842). 


38  THE   MODERN   LAW   OF   CARRIERS. 

watch,  and  there  being  nothing  which  called  for  special 
^'iQdlance,  it  cannot  be  said  that  the  loss  was  incurred 
^\4th  his  pri\'ity  or  knowledge/ 

Section  42S9,  as  originally  enacted,  was  as  follows : 

'"The  pro\'isions  of  this  Title  relating  to  the  limitation 
of  the  liability  of  the  o^^Tiers  of  vessels,  shall  not  apph'  to 
the  owners  of  any  canal-boat,  barge  or  lighter,  or  to  any 
vessel  of  am'  description  whatsoever,  used  in  rivers  or  in- 
land na\'igation."' 

There  has  been  considerable  diversity  of  opinion  as  to 
the  true  construction  to  be  given  to  the  words  "  inland 
navigation." 

In  ]Moore  i\  Am.  Transportation  Co.'^  it  was  held  by 
the  U.  S.  Supreme  Court,  affirming  the  decision  of  the 
Supreme  Court  of  Michigan,*  that  the  na\-igation  of  the 
great  lakes  was  not  "  inland  na\4gation  "  within  the  mean- 
ing of  this  act,  and  that  it  was  as  applicable  to  a  vessel 
engaged  in  trafi&c  between  Buffalo  and  Detroit  as  to  a  ves- 
sel plying  between  New  York  and  Liverpool. 

It  is  applicable  to  vessels  engaged  in  na\dgating  Long" 
Island  Sound.^ 

It  is  not  limited  to  vessels  pl3'ing  between  ports  of  dif- 
ferent States.  If  they  are  not  confined  to  rivers  or  inland 
navigation,  they  can  avail  themselves  of  the  provisions  of 
the  act,  although  plying  between  ports  and  exclusivel}^ 
upon  waters  of  the  same  State.  The  Act  of  185 1  was  a 
regulation  of  inter-State  and  foreign  commerce.     But  it 

1  The  Maria  &  Elizabeth,  12  Fed.  Rep.  627  (18S2);  The  Obev, 
L.  R.  I  Adm.  102  (1866). 

2  The  Maritime  Law  is  the  same.  Couder,  Diet.  Droit  Comm., 
title  Armateur,  sect.  109. 

3  24  How.  U.  S.  I  (i860). 

*  5  Mich.  368  (1858);  s.  p.,  Re  Vessel  Owners'  Towing  Co.,  26  Fed. 
Rep.  169(1886);  Wallace  v-  Providence  &  S.  S.  S.  Co..  M^Fed.  Rep.  56 
(1882). 

*  The  Seawanhaka.  re  Long  Island  Transp.  Co.,  5  Fed.  Rep.  599 
(1881);  Wallace  v.  P.  &  S.  S.  S.  Co.,  14  Fed.  Rep.  56  (1882). 


UNITED  STATES   STATUTE,   SECTION  4289.  39 

was  more.  It  was  a  declaration  and  adoption  of  the  Mari- 
time Law  in  its  application  to  the  jurisdiction  and  de- 
cision of  Courts  of  Admiralty/  and  is  therefore  applicable, 
so  far  as  its  terms  extend,  to  commerce  upon  all  waters 
within  the  jurisdiction  of  our  Admiralty  Courts. 

But  a  steamer  plying  exclusively  on  a  river  is  ex- 
cluded from  the  benefit  of  the  act  by  the  terms  of  sec- 
tion 4289.^  The  name  of  the  stream,  however,  is  not 
conclusive.  If  it  be  really  an  arm  of  the  sea,  like  the 
Bast  River,  vessels  plying  on  it  are  not  engaged  in  river 
navigation,  and  the  act  applies  to  and  protects  their  own- 
ers.® 

Some  of  the  questions  as  to  the  application  of  this  sec- 
tion to  inland  waters  are  now  removed  by  subsequent  leg- 
islation amending  the  original  statute. 

In  1884  an  additional  statute  was  passed.^ 

Sec.  18.  That  the  individual  liability  of  a  ship-owner 
shall  be  limited  to  the  proportion  of  any  or  all  debts  and 
liabilities  that  his  individual  share  of  the  vessel  bears  to 
the  whole ;  and  the  aggregate  liabilities  of  all  the  owners 
of  a  vessel  on  account  of  the  same  shall  not  exceed  the 
value  of  such  vessels  and  freight  pending ;  Provided^  That 
this  provision  shall  not  affect  the  liability  of  any  owner 
incurred  previous  to  the  passage  of  this  act,  nor  prevent 
any  claimant  from  joining  all  the  owners  in  one  action; 
nor  shall  the  same  apply  to  wages  due  to  persons  employed 
by  said  ship-owners. 

This  section  does  not  seem  to  have  yet  been  construed 
by  the  courts.  It  was  perhaps  intended  as  a  legislative 
interpretation  of  section  4283  of  the  Revised  Statutes  with 

^  Lord  V.  Steamship  Co.,  102  U.  S.  541  (1880);  The  Seawanhaka 
Re  Long  Island  Transp.  Co.,  5  Fed.  Rep.  599  (1881);  Re  Norwich  &  N- 
Y.  Trans.  Co.,  17  Blatchf.  221  (1879).  The  contrary  was  held  in  Spring 
V.  Haskell,  80  Mass.  (14  Gray)  309  (1859). 

■^  Plant  V.  Stovall,  40  Ga.  85  (1869). 

3  The  Garden  City,  26  Fed.  Rep.  766  (1886). 

*  23  U.   S.  Stat,  at  Large,  57  ;  Act  June  26,  1884,  sect.  18. 


40  THE   MODERN   LAW   OF   CARRIERS. 

whicTi  it  is  coterminous.  Under  the  Revised  Statutes  the 
liability  of  the  owner  is  limited  to  the  value  of  his  interest 
in  ship  or  vessel,  and  it  would  seem  obvious  that  the  owner 
of  the  fourth  part  of  a  ship  could  not  be  made  personally- 
liable  for  more  than  one-fourth  part  of  her  value,  that  is, 
in  the  language  of  the  statute  of  1884  ''  the  proportion  his 
individual  share  of  the  vessel  bears  to  the  whole." 

It  will  be  noticed  that  all  liabilities  are  mentioned  in 
the  statute  of  1 884,  while  in  the  Revised  Statutes  the  lim- 
itation is  confined  to  liability  for  "  any  embezzlement^''  &c. 
It  is  not  believed  that  since  the  act  of  185 1  the  owners 
were  ever  held  liable  in  a  separate  suit  to  an  amount  ex- 
ceeding the  value  of  their  vessel,  for  separate  embezzle- 
ments, collisions,  or  otherwise,  except  in  the  cases  herein- 
after referred  to,  where  such  losses  occured  during  different 
voyages.^  But  as  such  questions  might  arise,  the  statute 
of  1884  seems  intended  to  imply  that  the  owner  should 
not  be  liable  for  the  aggregate  amount  of  losses  caused  by 
the  ship  during  a  given  voyage,  to  an  amount  greater  than 
"  the  value  of  such  vessels  and  freight  pending." 

Further  question  might  have  been  made  as  to  whether 
this  statute  of  1884  acting  as  an  amendment  of  sect.  4283 

1  After  the  passage  of  this  Act  of  1884  it  was  held  in  the  Great 
Western;  Thommessen  v.  Whitwill,  118  U.  S.  520;  s.  c  30  Lawyers'  Ed. 
156  (1886),  that  where  a  vessel  committed  a  maritime  tort  and  was  after- 
wards stranded  and  wrecked,  her  value,  for  the  purpose  of  limited 
liability  proceedings  was  to  be  taken  as  that  of  the  wreck.  The  reasons 
given  for  this  decision  would  be  equally  applicable  if  the  wreck  had 
been  caused  by  a  second  tort  which  inflicted  injury  upon  another  vessel. 

See  also  The  City  of  Norwich,  118  U.  S.  500  (1886).  It  is  to  be 
noticed  that  the  liability  to  action  for  successive  losses  was  (Brown  v. 
Wilkinson,  15  Mees.  &  Wels.  397  [1846])  given  as  a  reason  in  favor  of 
the  English  rule  which  fixed  the  value  of  the  offending  vessel  as  that  just 
before  the  commission  of  the  tort. 

The  present  English  rule  fixes  the  limit  of  liability  for  damage  caused 
on  any  one  occasion  at  _p/^8  per  ton.  But  where  the  offending  vessel 
ran  into  one  vessel  and  then  immediately  after  in  consequence  of  the 
same  act  of  improper  navigation  ran  into  and  sank  another,  it  was  held 
that  the  loss  to  both  vessels  was  caused  "substantially  at  the  same  time, 
and  on  the  same  occasion."     The  Rajah,  L.  R.  3  Adm.  539  (1872). 


UNITED  STATES   STATUTE,   SECTION  4289.  41 

of  the  Revised  Statutes,  therefore  repealed  by  implication 
section  4289  of  the  Revised  Statutes,  which  limits  it. 

Repeals  by  implication  are  not  favored,  and  statutes  m 
pari  materia  should  be  construed  together.  If  construed 
in  the  light  of  these  well  settled  rules  of  construction,  it  is 
believed  that  the  statute  of  1884  did  not  repeal  section  4289 
of  the  Revised  Statutes,  and  that  the  limitation  contained 
in  the  latter  limited  the  statute  of  1884,  although  not 
referred  to  in  it. 

That  this  view  is  correct  would  seem  to  be  now  deter- 
mined by  a  still  later  statute  which  not  only  recognizes 
the  continued  existence  of  section  4289,  but  amends  it. 
This  later  statute  was  passed  in  1886,^  and  is  as  follows : 

Sec.  4.  That  section  forty-two  hundred  and  eighty-nine 
of  the  Revised  Statutes  be  amended  so  as  to  read  as  fol- 
lows : 

Sec.  4289.  The  provisions  of  the  seven  preceding  sec- 
tions, and  of  section  eighteen  of  an  act  entitled  '^An  act 
to  remove  certain  burdens  on  the  American  merchant 
marine  and  encourage  the  American  foreign  carrying  trade, 
and  for  other  purposes,"  approved  June  twenty-sixth, 
eighteen  hundred  and  eighty-four,  relating  to  the  limita- 
tions of  the  liability  of  the  owners  of  vessels,  shall  apply 
to  all  sea-going  vessels,  and  also  to  all  vessels  used  on 
lakes  or  rivers  or  in  inland  navigation,  including  canal- 
boats,  barges,  and  lighters. 

Whether  this  important  extension  to  rivers  and  inland 
waters,  of  the  limitation  of  shippers'  liability,  is  intended 
to  include  waters  lying  entirely  within  any  State,  as  it  does 
in  terms,  and  if  so,  whether  this  extension  is  valid,  are 
questions  which  must  be  left  for  the  courts  to  determine 
in  the  future.  They  have  not  yet  been  considered  in  any 
important  case  which  the  author  has  been  able  to  discover.^ 

^  24  U.  S.  Stats,  at  Large,  80;  Act  June  19,  1886,  sect.  4. 

''  In  Chappell  v.  Bradshaw  (C  C.  D.  Md.),  35  Fed.  Rep.  923  (1888), 
it  was  held  that  the  statute  of  1884  did  not  repeal  section  4289  of  the 
Revised  Statutes  and  that  the  act  of  1886  was  not  retroactive. 


42  THE   MODERN   LAW   OF   CARRIERS. 

Having  thus  considered  in  detail  these  sections  of  the 
act  of  1 85 1,  as  re-enacted  and  amended,  we  proceed  to  con- 
sider some  questions  that  have  arisen  in  regard  to  the  act, 
considered  as  a  whole. 

The  language  of  the  statute  is  general  and  applies  to 
liability  for  the  negligence  of  the  master  and  mariners,  as 
well  as  for  their  willful  torts.^ 

The  act  applies  to  enrolled  and  licensed,  as  well  as  to 
registered  vessels.^ 

It  is  immaterial  that  the  contract  of  transportation  was 
made  on  land  and  included  land  carriage.  If  the  loss  or 
injury  was  done  or  occasioned  on  the  water,  the  owner  is 
entitled  to  the  benefit  of  the  act.^ 

It  has  been  held  that  the  liability  of  the  owner  of  a 
vessel  can  only  be  limited  under  the  law  to  loss  or  damage 
occurring  on  the  last  voyage  in  which  she  engaged.  The 
court  put  this  on  the  language  of  the  statute,  and  on  the 
ground  that  it  could  not  have  been  the  intention  of  the 
law  to  allow  owners  to  let  claims  accumulate  against  the 
vessel,  on  various  voyages,  until  they  amounted  in  the 
aggregate  to  more  than  her  value  and  then  abandon  her.* 

A  railway  company  owning  a  ship  can  take  advantage 
of  the  act.^ 

^  Stinson  v.  Wyman,  2  Ware  (Davies),  172  (1841).  This  decision 
was  rendered  under  the  language  of  the  Maine  statute,  which  was  similar 
to  that  of  the  United  States  Act  of  185 1. 

2  Wallace  v.  Providence  &  S.  S.  S.  Co.,  14  Fed.  Rep.  56  (1882). 
The  law  is  apparently  stated  to  be  otherwise  in  Chisholm  v.  Trans.  Co., 
61  Barb.  363  (N.  Y.)  1872.  But  the  word  "not"  in  Judge  Talcott's 
opinion  (p.  386)  was  obviously  inserted  by  a  mistake  either  of  the  copyist 
or  reporter.  The  decision  was  that  the  act  did  apply  to  a  vessel  of  that 
class. 

3  Wallace  v.  Providence  &  S.  S.  S.  Co.,  14  Fed.  Rep.  56  (1882). 

*  The  Alpena,  8  Fed.  Rep.  280  (1881).  The  continental  law  is 
otherwise.  It  was  held  by  the  Court  of  Cassation,  Dec.  31,  1856,  that 
the  owner  of  a  vessel  could  limit  his  liabilty  for  a  loss  occurring  on  a 
previous  voyage,  in  cases  where  no  suit  against  the  vessel  or  her  owners 
was  brought  until  after  the  termination  of  the  intermediate  voyage- 
Journal  du  Palais,  Table  complementaire,  vol.  i,  p.  118,  section  34. 

5  London  &  S.  W.  Ry.  Co.  v.  James,  L.  R.  8  Ch.  App.  24  (1872). 


UNITED   STATES  STATUTE.  43 

The  act  applies  to  a  vessel  in  a  wrecked  condition,  though, 
she  cannot  propel  herself  either  by  sail  or  steam,  or  carry 
cargo.     She  is  still  a  vessel.^ 

The  owner's  personal  liability  is  not  extended  by  the 
execution  of  a  bottomry  bond  by  the  master.^ 

Two  questions  have  arisen  under  these  sections  of  the 
statute  with  reference  to  the  Admiralty  rule  of  apportion- 
ing damages  where  both  parties  are  at  fault. 

Where  a  collision  occurs  and  both  vessels  are  in  fault, 
the  practice  in  the  American  admiralty  courts  is  to  render 
a  single  judgment  in  favor  of  the  owners  of  the  one  injured 
least,  against  the  other,  for  half  the  amount  of  the  difference 
between  their  respective  losses.  It  follows  that  the  owners 
of  a  vessel  which  is  actually  lost  and  sunk  by  a  collision 
can  not  when  both  vessels  are  to  blame,  claim  to  limit 
their  own  liability  for  the  collision  to  the  value  of  the 
wreck,  and  at  the  same  time  recover  against  the  other 
vessel  the  entire  half  of  the  damage  sustained  by  them.^ 

^  Craig  V.  Continental  Ins.  Co.,  26  Fed.  Rep.  798  (1886). 

^  Naylor  v.  Baltzell,  Taney,  55,  60  (1841). 

3  The  North  Star,  106  U.  S.  17,  22  (1882).  In  this  case  the  Court 
say:  "  These  authorities  conclusively  show  that,  according  to  the  general 
maritime  law,  in  cases  of  collision  occurring  by  the  fault  of  both  parties, 
the  entire  damage  to  both  ships  is  added  together  in  one  common  mass, 
and  equally  divided  between  them,  and  thereupon  arises  a  liability  of 
one  party  to  pay  to  the  other  such  sum  as  is  necessary  to  equalize  the 
burden.     This  is  the  rule  of  mutual  liability  between  the  parties." 

This  overrules  the  decision  of  the  English  Court  of  Appeals  in 
Chapman  v.  Royal  Netherlands  Steam  N.  Co.,  L.  R.  4  Prob.  Div.  157 
(1879).  That  decision  was  by  a  divided  court  reversing  the  decision  of 
Sir  George  Jessel,  which  was  in  harmony  with  that  of  the  Supreme  Court. 
On  the  question  of  the  weight  of  authority,  the  Supreme  Court  were  well 
warranted  in  considering  the  judgment  of  the  Master  of  the  Rolls  and 
Justice  Brett  as  quite  equal  to  that  of  the  two  Lord  Justices  who  took 
the  opposite  view. 

This  decision  in  the  Chapman  case  was  overruled  in  the  House  of 
Lords,  July  26,  1882.  Stoomvaart  Maatschappy  Nederland  v.  Peninsular 
&  Oriental  S.  N.  Co.,  L.  R.  7  App.  Ca.  795  (1882).  This  case  was  not 
brought  to  the  attention  of  the  Supreme  Court,  but  it  is  referred  to  by  the 
reporter.  The  Judgment  was  that  "  the  owners  of  the  steam  vessel  Voor- 
waarts  are  entitled  to  prove  against  the  fund  paid  into  the  court  under  that 
judgment,  for  a  moiety  of  the  loss  and  damage  sustained  by  them,  less. 


44  THE  MODERN  LAW  OF  CARRIERS. 

Where  cargo  is  injured  by  a  collision  between  two  ves- 
sels, and  it  is  held  that  both  are  to  blame,  the  owner 
of  the  cargo  recovers  a  moiety  of  his  loss  from  each  of 
the  offending  vessels.  If  one  of  them  is  not  of  value 
sufficient  to  pay  this  moiety,  the  other  is  liable  for.  the 
amount  of  the  deficiency.^  If  the  owner  of  the  cargo 
proceed  against  only  one  of  the  offending  vessels,  he  re- 
covers his  whole  damage.^  Whether  the  owner  of  the  li- 
belled vessel  could,  in  such  case,  have  process  to  compel 
the  other  wrong-doer  to  appear  and  respond  to  the  alleged 
wrongful  act,  the  Supreme  Court  did  not  determine ;  ^  but 
on  principle  it  would  seem  that  in  Admiralty  this  right 
should  exist.^ 

If  the  owner  of  one  of  the  injured  vessels  be  also  the 
owner  of  the  cargo  on  board,  and  he  desires  to  limit  his 
liability  for  the  injury  done  to  the  other  vessel,  he  can  do 
so  without  abandoning  his  interest  in  his  cargo. ^ 

The  method,  according  to  which  the  computation  of 

a  moiety  of  the  loss  and  damage  sustained  by  the  steam  vessel 
Khedive,  and  to  be  paid  in  respect  of  the  balance  due  to  them  after  such 
<ieduct'ion,  /> an'  J>assu,  with  the  other  claimants  out  of  such  fund."  The 
Jose  E.  More,  37  Fed.  Rep.  122  (1888). 

^  The  Alabama  and  The  Gamecock,  92  U.  S.  695  (1875);  The 
AVashington  and  The  Gregory,  9  Wall.  513  (1870).  These  cases  over- 
rule The  City  of  Hartford  and  The  Unit,  11  Blatchf.  290  (1873),  and 
The  Milan,  i  Lush.  388  (1861).  The  earlier  English  decisions  on  this 
rule  of  dividing  the  damages  are  fully  stated  in  The  Milan.  See  The 
Britannic,  39  Fed.  Rep.  395  (1889). 

2  The  Atlas,  93  U.  S.  302  (1876);  rev'g  s.  c.  10  Blatchf.  459  (1873); 
4  Bened.  27  (1870). 

^  The  Atlas,  93  U.  S.  302,  317  (1876).  This  case  had  been  decided 
in  the  Circuit  Court  on  the  ground  that  "  a  libellant  could  not,  by  pro- 
ceeding against  one  of  the  offending  vessels  alone,  deprive  her  owners 
of  the  right  to  such  contribution  from  the  other  vessel,  and  of  the 
means  of  enforcing  it."  This  was  so  stated  by  Judge  Woodruff  in  The 
City  of  Hartford  and  The  Unit,  11  Blatchf.  290,  293  (1873). 

*  The  Canima,  17  Fed.  Rep.  271  (1883).  The  decree  in  this  case 
accomplished  the  result  indicated  in  the  text,  though  by  a  different 
method,  owing  to  the  fact  that  on  one  libel  the  owners  of  both  ships 
were  before  the  Court. 

*  The  Bristol,  29  Fed.  Rep.  867  (1887).  The  French  law  is  the 
same  as  shown  in  this  case,  p.  873. 


UNITED  STATES   STATUTE.  45 

damage  and  consequent  recovery  are  to  be  determined  in 
a  case  where  both  vessels  are  to  blame,  is  fully  stated  in 
the  Bristol.  Briefly  it  may  be  said  that  in  such  case,  the 
owner  of  the  cargo  on  the  abandoned  vessel  recovers  half 
his  loss  from  the  other  vessel,  less  the  net  salvage  upon 
his  own  vessel,  which,  under  the  Statute,  is  the  limit  of 
his  liability  for  the  tort  of  his  vessel/ 

We  have  now  considered  the  case  of  a  collision  where 
both  vessels  are  at  fault,  and  the  cargo  on  board  of  one  of 
them  belongs  to  the  owner  of  the  injured  vessel.  But  it 
more  frequently  happens  that  the  cargo  on  the  injured 
vessel  belongs  to  some  person  other  than  the  owner  of  the 
vessel  herself.  In  such  case,  as  has  been  shown,  he  is 
entitled  to  recover  the  whole  of  his  damage.  If  the  owners 
of  the  vessel  on  which  his  cargo  was  laden  succeed  in  lim- 
iting their  liability,  he  is  entitled  to  recover  the  entire 
value  of  his  cargo  from  the  other  vessel,  and  the  weight 
of  authority  at  present  is,  that  in  making  up  the  state- 
ment of  the  account  as  between  the  respective  owners,  any 
right  of  action  of  the  owners  of  the  injured  vessel  against 
the  other  must  be  transferred  to  the  trustee  in  the  limited 
liability  proceedings,  if  a  trustee  be  appointed,  or  else  in- 
cluded in  the  stipulation  given  for  value.  This  question 
was  considered  and  not  decided  in  the  Leonard  case,'^  but 
the  earlier  and  subsequent  cases  support  the  proportion 
just  stated.^     In  effect,  therefore,  there  would  be  brought 

^  The  Bristol,  29  Fed.  Rep.  867  (1887).  If  the  injury  had  been  to 
the  person,  instead  of  the  property,  of  the  owner  of  the  offending  ves- 
sel, he  would  in  like  manner  have  recovered  only  half  of  his  damages. 
The  Juniata,  93  U.  S.  337  (1876). 

'  i?^  Leonard,  14  Fed.  Rep.  53  (1882). 

3  The  C.  H.  Foster,  i  Fed.  Rep.  733  (1880);  Atlantic  Mut.  Ins.  Co. 
V.  Alexandre,  16  Fed.  Rep.  279  (1883);  The  Hercules,  20  Fed.  Rep. 
205  (1884);  and  see  The  Eleanora,  17  Blatchf.  104  (1879).  This  is 
stated  ai  an  inference  from  the  decisions  cited  ante,  p.  43,  n.  3,  and 
p.  44,  n.  I  and  2. 

Iti  re  Petition  Norwich  &  N.  Y.  Trans.  Co.,  17  Blatchf.  221,  234 
(1879),  Strong,  J.,  says: 

"  There  is  nothing  in  the  act  of  Congress  to  indicate  that  the  trans- 


46  THE   MODERN   LAW   OF   CARRIERS. 

into  court  in  the  limited  liability  proceedings  taken  by 
the  owners  of  the  sunken  vessel,  not  simply  the  value  of 


fer  of  the  interest  of  the  owner  to  a  trustee  was  intended  to  have  any- 
different  effect  from  that  of  an  ordinary  transfer  of  personal  property, 
which,  neither  in  law  or  equity,  carries  with  it  insurance  or  any  collat- 
eral contract." 

It  may  be  contended  that  this  transfer  should  not  carry  with  it  any 
right  of  action  for  the  injury  to  the  vessel  transferred.  The  act  cer- 
tainly does  not  say  that  any  such  right  shall  be  assigned,  and  in  Denn 
V.  Reid,  lo  Peters,  528  (1836),  the  Supreme  Court  said:  "But  it  is  not 
for  the  court  to  say,  when  the  language  of  the  statute  is  clear,  that  it 
shall  be  so  construed  as  to  embrace  cases  because  no  reason  can  be  as- 
signed why  they  were  excluded  from  its  provisions." 

The  phrase  in  the  statute — "interest  of  the  owner" — is  often  used 
as  expressive  of  the  extent  of  the  owner's  aliquot  share  in  the  vessel. 
The  several  part  owners  are  tenants  in  common  "  with  each  other  of 
their  respective  shares,  each  having  a  distinct,  although  individual  in- 
terest in  the  whole."     Abb.  on  Shipping,  97  ;  i  Phill.  Ins.,  sect.  380. 

It  may  well  be,  therefore,  that  the  Supreme  Court  will  ultimately 
determine  that  the  transfer  of  the  owner's  interest  transfers  his  share, 
whatever  that  may  be,  but  does  not  transfer  his  right  of  action  for  a 
previous  injury  to  such  share.  This  would  be  in  analogy  to  the  well- 
settled  rule  in  Admiralty  that  it  is  the  ship,  and  not  the  owner,  which 
is  to  be  considered  as  the  wrong-doer.  For  example,  in  The  China,  7 
Wallace,  53,  68  (1868),  the  Supreme  Court  say: 

"  The  Maritime  Law  as  to  the  position  and  powers  of  the  master 
and  the  responsibility  of  the  vessel,  is  not  derived  from  the  civil  law  of 
master  and  servant,  nor  from  the  common  law.  It  had  its  source  in  the 
commercial  usages  and  jurisprudence  of  the  middle  ages.  Originally 
the  primary  liability  was  upon  the  vessel,  and  that  of  the  owner  was 
not  personal,  but  merely  incidental  to  his  ownership,  from  which  he  was 
discharged  either  by  the  loss  of  his  vessel,  or  by  abandoning  it  to  the 
creditors.  But  while  the  law  limited  the  creditor  to  this  part  of  the 
owner's  property,  it  gave  him  a  lien  or  privilege  against  it,  in  preference 
to  other  creditors." 

So  in  The  Malek  Adhel,  2  How.  U.  S.  210,  234  (1844),  the  court  say: 

"  The  ship  is  also  by  the  general  maritime  law  held  responsible  for 
the  torts  and  misconduct  of  the  master  and  crew  thereof,  whether  arising 
from  negligence  or  a  willful  disregard  of  duty;  as  for  example  in  cases 
of  collision  and  other  wrongs  done  upon  the  high  seas  or  elsewhere, 
within  the  admiralty  and  maritime  jurisdiction,  upon  the  general  policy 
of  that  law,  which  looks  to  the  instrument  itself,  used  as  the  means  of 
mischief,  as  the  best  and  surest  pledge  for  the  compensation  and  indem- 
nity to  the  injured  party." 

It  would  seem,  therefore,  that  the  proposition  stated  in  the  text  can 
hardly  be  said  to  be  settled  beyond  controversy.  The  cases  cited,  how- 
ever, show  that  the  weight  of  authority  in  the  District  and  Circuit  Courts 
at  present  supports  it. 


UNITED   STATES   STATUTE,   SECTION  428 1.  47 

the  wreck,  but  also  the  proportion  of  the  damage  which 
they  would  be  entitled  to  recover  against  the  other  vessel. 
The  value  of  the  wreck  and  the  value  of  the  recovery- 
would  form  a  fund  for  distribution. 

The  insurer  who  pays  a  loss  on  cargo  is  subrogated 
to  the  rights  of  its  owner,  but  he  occupies  no  better  posi- 
tion, and  can  recover  only  half  the  loss  in  a  case  in 
which  that  would  have  been  the  extent  of  the  owner's  re- 
covery.^ 

It  must  be  remembered  that  damage  done  to  cargo  in 
either  vessel  is  a  part  of  the  loss  or  damage  caused  by  a 
collision,  "and  it  is  wholly  immaterial  in  which  vessel 
the  damaged  cargo  happens  to  be."  "^ 

Two  other  sections  of  the  Revised  Statutes  remain  to 
be  considered : 

Section  4281  is  as  follows  : 

"  If  any  shipper  of  platina,  gold,  gold-dust,  silver, 
bullion  or  other  precious  metals,  coins,  jewelry,  bills  of 
any  bank  or  public  body,  diamonds  or  other  precious 
stones,  or  any  gold  or  silver  in  a  manufactured  or  unman- 
ufactured state,  watches,  clocks  or  time-pieces  of  any  de- 
scription, trinkets,  orders,  notes  or  securities  for  payment 
of  money,  stamps,  maps,  writings,  title  deeds,  printings, 
engravings,  pictures,  gold  or  silver  plate  or  plated  ar- 
ticles, glass,  china,  silk  in  a  manufactured  or  unmanu- 
factured state,  and  whether  wrought  up  or  not  wrought  up 
with  any  other  material,  furs  or  lace,  or  any  of  them,  con- 
tained in  any  parcel  or  package,  or  trunk,  shall  lade  the 
same  as  freight  or  baggage,  on  any  vessel,  without,  at  the 
time  of  such  lading,  giving  to  the  master,  clerk,  agent  or 
owner  of  such  vessel  receiving  the  same,  a  written  notice 
of  the   true  character  and  value  thereof,  and  having  the 

1  The  Bristol,  29  Fed.  Rep.  867  (1887).  This  was  decided  on  the 
authority  of  Phoenix  Ins.  Co.  v.  Erie  Trans.  Co.,  117  U.  S.  312  (1886). 
Simpson  v.  Thomson,  L.  R.  3  App.  Ca.  279  (1877). 

=*  Leonard  v.  Whitwill,  10  Bened.  638,  658  (1879);  The  Bristol,  29 
Fed.  Rep.  867  (1887).  See  the  decree  in  The  Eleanora,  17  Blatchf.  88, 
IDS  (1879). 


48  THE   MODERN   LAW   OF   CARRIERS. 

same  entered  on  the  bill  of  lading  therefor,  the  master 
and  owner  of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  any  form  or  manner,  nor  shall  any  such  mas- 
ter or  owner  be  liable  for  any  such  goods  beyond  the 
value,  and  according  to  the  character  thereof,  so  notified 
and  entered." 

This  statute  was  passed  in  its  original  form,  March  3, 
1 85 1.     It  then  read  as  follows  : 

"Sec.  2.  And  be  it  further  enacted,  That  if  any  ship- 
per or  shippers  of  platina,  gold,  gold-dust,  silver,  bullion 
or  other  precious  metals  ;  coins,  jewelry,  bills  of  any  bank 
or  public  body ;  diamonds  or  other  precious  stones,  shall 
lade  the  same  on  board  of  any  ship  or  vessel,  without,  at 
the  time  of  such  lading,  giving  to  the  master,  agent,  own- 
er or  owners  of  the  ship  or  vessel  receiving  the  same,  a 
note  in  writing  of  the  true  character  and  value  thereof, 
and  have  the  same  entered  on  the  bills  of  lading  therefor, 
the  master  and  owner  or  owners  of  the  said  vessel  shall 
not  be  liable,  as  carriers  thereof,  in  any  form  or  manner. 
Nor  shall  any  such  master  or  owners  be  liable  for  any 
such  valuable  goods  beyond  the  value  and  according  to 
the  character  thereof  so  notified  and  entered."  ^ 

The  statute  was  afterwards  amended  so  as  to  include 
many  other  articles  than  those  enumerated  in  the  statute 
of  1 85 1  (among  them  pictures),  and  was  also  amended  by 
the  addition  of  the  words,  "  contained  in  any  parcel,  or 
package,  or  trunk,"  and  also  by  the  insertion  after  the 
words  "shall  lade  the  same,"  of  the  words  "as  freight  or 
baggage." ' 

In  this  amended  shape  it  appears  in  the  United  States 
Revised  Statutes  to-day.  It  would  be  difficult  to  find  a 
plainer  indication  of  the  legislative  intent  that  the  statute 
should  cover  every  kind  of  case  under  which  such  enum- 

^  U.  S.  Statutes  at  Large,  vol.  9,  p.  635. 

2  U.  S.  Stat,  at  Large,  vol.  16,  p.  458,  chap.  loo,  sect.  69  (Feb.  28 
1871). 


UNITED  STATES  STATUTE,   SECTION   4492.  49 

erated  articles  might  be  put  on  board,  tban  is  shown  by 
the  insertion  of  the  words  "as  freight  or  baggage,"  above 
referred  to.  It  was  held  in  Massachusetts  that  the  original 
statute  did  not  apply  to  the  baggage  of  passengers.^ 

But  it  would  seem  clear  that  baggage,  as  well  as 
freight,  are  within  the  terms  of  the  law  as  amended.'^  It 
has,  however,  been  held  in  New  York  that  a  passenger 
who  puts  articles  of  jewelry,  such  as  she  is  accustomed  to 
wear  upon  her  person,  in  a  trunk  which  she  takes  with 
her  on  a  steamer,  is  not  a  shipper  of  such  jewelry,  within 
the  meaning  of  the  act,  and  that  the  carrier  is  liable  for 
their  loss,  although  the  passenger  has  given  no  notice  of 
the  character  and  value  thereof  to  the  master  or  agent  of 
the  ship.^ 

The  statute  is  so  comprehensive  in  terms  that  the  car- 
rier would  not  be  liable,  even  for  negligence,  in  a  case 
covered  by  it.* 

It  is  enough  if  the  "notice  of  the  true  character  and 
value "  is  contained  in  the  bill  of  lading.  It  need  not  be 
a  separate  notice.^ 

The  remaining  section  requiring  consideration  is  sec- 
tion 4493,  which  is  as  follows : 

Sec.  4493.   Whenever  damage   is    sustained   by   any 

^  Dunlap  V.  The  International  Steamboat  Co.,  98  Mass.  371  (1867). 
Under  the  statute  of  1851  the  Commission  of  Appeals  of  New  York 
held  that  the  words,  "  any  goods  or  merchandise  whatsoever,"  in  the 
first  section  of  that  act,  applied  to  personal  baggage.  Chamberlain  v. 
Western  Transportation  Co.,  44  N.  Y.  305  (187 1). 

^  Wheeler  v.  Oceanic  Steam  N.  Co.,  52  Hun,  75;  s.  c.  5  N.  Y.  Supp. 
loi  (1889). 

'  Carlson  v.  Oceanic  Steam  Nav.  Co.,  109  N.  Y.  359  (1888). 

*  The  statute  is  founded  upon  the  British  statute,  i  Wm.  IV,  chap. 
68.  Under  that  statute  it  was  held  that  a  carrier  would  not  be  liable  even 
for  gross  negligence.  Hinton  v.  Dibbin,  2  Ad.  &  Ellis,  N.  S.  (Qu.  B.) 
646  (1842). 

^  Watson  V.  Marks,  2  Am.  Law  Reg.  157  (1853).  Under  the  En- 
glish statute  it  has  been  held  that  a  description  of  the  goods  shipped,  as 
"one  box  containing  about  248  oz.  of  gold-dust,"  was  not  a  sufficient 
statement  of  value.  Williams  v.  African  S.  S.  Co.,  i  Hurlst.  &  N.  300 
(1856).  This  seems  a  very  technical  construction. 
4 


50  THE  MODERN   LAW  OF  CARRIERS. 

passenger  or  his  baggage,  from  explosion,  fire,  collision  or 
other  cause,  the  master  and  the  owner  of  such  vessel,  or 
either  of  them,  and  the  vessel,  shall  be  liable  to  each  and 
every  person  so  injured,  to  the  full  amount  of  damage,  if 
it  happens  through  any  neglect  or  failure  to  comply  with 
the  provisions  of  this  Title,  or  through  known  defects  or 
imperfections  of  the  steaming  apparatus,  or  of  the  hull ; 
and  any  person  sustaining  loss  or  injury  through  the 
carelessness,  negligence,  or  willful  misconduct  of  any 
master,  mate,  engineer  or  pilot,  or  his  neglect  or  refusal 
to  obey  the  laws  governing  the  navigation  of  such  steam- 
ers, may  sue  such  master,  mate,  engineer  or  pilot,  and  re- 
cover damages  for  any  such  injury  caused  by  any  such 
master,  mate,  engineer  or  pilot. 

It  was  held,  under  the  provisions  of  the  section  of 
which  this  is  a  re-enactment,  that  damages  sustained  by  a 
passenger  or  his  baggage  from  any  of  the  causes  therein 
mentioned,  is  not  included  within  the  loss,  the  liability 
for  which  can  be  limited  under  section  4283.^  The  de- 
cision in  the  Carroll  case  was  placed  on  the  ground  that 
the  object  of  the  Act  of  185 1  was  to  limit  the  common- 
law  liability  of  carriers  of  goods.  It  has,  however,  been 
shown  that  the  Act  of  185 1  applies  to  the  liability  of  car- 
riers for  injuries  to  persons  as  well  as  injuries  to  goods. 
But  the  case  is  sustainable  on  the  express  language  of 
the  section  which,  so  far  as  passengers  and  their  baggage 
are  concerned,  is  clear  enough.  But  when  a  loss  of  goods 
happens  through  failure  to  comply  with  the  provisions  of 
the  title  of  which  the  section  just  quoted  forms  a  part,  or 
through  known  defects  or  imperfections  of  the  steaming 
apparatus,  or  of  the  hull,  the  question  will  arise  whether 
the  loss  was  incurred  with  the  privity  or  knowledge  of 
the  owner. 

Under  the  familiar  rule  that  statutes  which   are  in 

1  Act  of  Feb.  28,  1871;  U.  S.  Stat,  at  Large,  vol.  16,  p.  446;  Car- 
roll V.  Staten  Island  R.  R.  Co.,  58  N.  Y.  126  (1874);  Chisholra  z/. 
Northern  Transp.  Co.,  61  Barb.  393  (1872). 


UNITED  STATES   STATUTE,   SECTION  4493.  5 1 

pari  materia  are  to  be  construed  together,  it  would  seem 
reasonable  to  maintain  that  a  vessel  which  is  not  equipped 
in  accordance  with  the  sections  of  the  same  title,  is  de- 
fectively equipped  with  the  privity  or  knowledge  of  the 
owner,  because  of  the  duty  to  provide  such  equipment  im- 
posed upon  him  by  the  statute.^  On  the  other  hand  it 
may  fairly  be  argued  that  if  the  carrier  cannot,  under  the 
Act  of  185 1,  limit  his  liability  for  a  loss  caused  by  such 
defective  equipment,  there  would  have  been  no  occasion 
for  passing  the  Act  of  February  28,  1871,  section  43,  re- 
enacted  as  above  stated.  No  decisions  are  reported  from 
which  any  inference  can  be  drawn  upon  this  subject. 

The  validity  of  the  act  of  which  this  section  formed  a 
part  was  at  one  time  disputed,  but  it  seems  clear  that  it 
is  a  regulation  of  commerce,  and  as  such  it  was  held  valid 
by  the  Supreme  Court.^ 

None  of  the  sections  of  the  statute  which  have  been 
referred  to  have  the  effect  to  oust  the  jurisdiction  of  the 
State  courts  of  all  common  law  actions.  These  may  still 
be  prosecuted,  and  if  it  should  not  become  necessary  to 
invoke  the  aid  of  the  admiralty  proceedings  authorized  by 
the  act,  and  the  rules  of  the  Supreme  Court  adopted  in 
conformity  to  it,  the  defence  under  the  statute  can  still 
be  asserted  in  these  suits.  In  other  words  there  is  nothing 
in  the  U.  S.  Statute,  which  ousts  the  jurisdiction  of  com- 
mon law  courts  of  actions  to  recover  damages  for  marine 
torts.^ 

But  where  several  actions  have  been  brought,  or  sev- 
eral claims  have  been  made  against  one  defendant  to  re- 
cover damages  for  a  marine  tort,  it  seems  clear  that  the 
only  remedy  available  to  the  defendant  is  that  provided 

*  It  was  so  held  in  England  v.  Gripon,  15  La.  Ann.  304  (i860). 

-  Sherlock  v.  Ailing,  93  U.  S.  99  (1876). 

^  Chappell  V.  Bradshaw,  128  U.  S.  132  (1888);  Dougan  v.  Champlain 
Trans.  Co.,  56  N.  Y.  r  (1874);  Carroll  v.  Staten  Island  R.  R.  Co.,  58  N. 
Y.  126  (1874). 


52  THE   MODERN   LAW   OF   CARRIERS. 

for  by  the  admiralty  rules.  The  effect  of  the  commence- 
ment of  proceedings  in  Admiralty  for  that  purpose,  is  to 
oust  the  jurisdiction  of  the  State  courts.  Whether  or  not 
the  Admiralty  Court  has  authority  to  grant  an  injunction 
is  a  point  not  yet  finally  determined,  but  it  is  settled  by 
the  Supreme  Court  of  the  United  States  that  the  pendency 
of  the  Admiralty  proceeding  is  a  bar  to  the  prosecution  of 
actions  in  common  law  courts,  to  recover  damages  for  the 
tort  respecting  which  the  petition  in  limited  liability  pro- 
ceedings has  been  filed.  If,  notwithstanding  the  interposi- 
tion of  this  defence,  the  State  court  should  assert  jurisdic- 
tion and  render  judgment  adversely  to  the  defendant,  this 
judgment  can  be  reviewed  by  writ  of  error  out  of  the  Su- 
preme Court. ^ 

1  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578,  600 
(1883). 


CHAPTER  III. 

PROCEDURE  UNDER  UNITED  STATES  STATUTE. 

An  owner  or  charterer  of  a  ship  or  vessel  desiring  to 
avail  himself  of  the  limitation  of  liability  which  has  thus 
been  considered,  may,  if  there  be  only  one  claim  against 
him,  or  the  several  claimants  have  brought  but  one  suit, 
plead  his  defense  in  bar  of  the  action  or  in  mitigation  of 
damages.^  If  he  desires  to  take  a£S.rmative  proceedings 
to  limit  his  liability,  he  must  file  his  libel  in  a  district 
court  of  the  United  States.  A  bill  in  equity,  for  the  pur- 
pose of  limiting  liability,  is  not  maintainable  in  the  United 
States.^ 

"The  said  libel  or  petition  shall  be  filed,  and  said  pro- 
ceedings had,  in  any  district  court  of  the  United  States  in 
which  said  ship  or  vessel  may  be  libelled  to  answer  for 
any  such  embezzlement,  loss,  destruction,  damage  or  in- 
jury; or  if  the  said  ship  or  vessel  be  not  libelled,  then  in 
the  district  court  for  any  district  in  which  said  owner  or 
owners  may  be  sued  in  that  behalf.  When  the  said  ship 
or  vessel  has  not  been  libelled  to  answer  the  matters  afore- 
said, and  suit  has  not  been  commenced  against  the  said 
owner  or  owners,  or  has  been  commenced  in  a  district 
other  than  that  in  which  the  said  ship  or  vessel  may  be, 

^  The  Scotland,  105  U.  S.  24  (1881).  So  he  may  if  the  loss  be  total, 
even  if  there  be  several  suits.  Craig  v.  Continental  Ins.  Co.,  26  Fed. 
Rep.  798  (1886). 

^  Goodrich  Trans.  Co.  v.  Gagnon,  ;^6  Fed.  Rep.  123  (1888);  s.  c. 
Chicago  Legal  News,  Aug.  25,  1888;  Elwell  v.  Geibei,  ^3  Fed.  Rep.  71 
(1887).  In  both  these  cases  the  tort  was  done  by  a  vessel  on  the  water 
to  persons  or  property  on  land.  But  this  fact  was  held  not  to  confer 
jurisdiction  on  the  Circuit  Court  in  equity.  See  The  Mary  Lord,  31 
Fed.  Rep.  416  (1887);  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co., 
109  U.  S.  578,  593  (1883);  Norwich  Co.  z'.  Wright,  13  Wall.  104,  123 
{1871).  It  is  a  curious  fact  that  in  England  the  remedy  by  statute  was 
original  in  equity. 


54  THE   MODERN   LAW   OF   CARRIERS. 

the  said  proceedings  may  be  had  in  the  district  court  of 
the  district  in  which  the  said  ship  or  vessel  may  be,  and 
where  it  may  be  subj  ect  to  the  control "  of  such  court 
for  the  purposes  of  the  case  as  hereinbefore  provided. 
If  the  ship  have  already  been  libelled  and  sold,  the  pro- 
ceeds shall  represent  the  same  for  the  purposes  of  these 
rules."  ^ 

There  remains  the  case  of  a  ship-owner  whose  ship 
has  become  a  total  loss,  and  who  has  not  yet  been  sued. 
He  can  obtain  relief  in  the  district  into  which  the  rem-- 

1  Admiralty  Rule  57,  promulgated  May  6,  1872,  13  Wall,  xiii;  as 
amended  April  27,  1889,  130  U.  S.  705  ;  In  re  Leonard,  (D.  C.,  S.  D. 
N.  Y.)  14  Fed.  Rep.  53  (1882).  In  this  case  the  district  court,  in 
Leonard  v.  Whitwell,  lo  Bened.  638  (1879),  had  held  that  both  of  two 
colliding  vessels  were  at  fault,  and  that  each  should  pay  half  the  dam- 
ages. The  owners  of  one  of  the  vessels — an  American  schooner — there- 
after filed  their  libel  in  the  Southern  District  of  New  York,  to  limit 
their  liability  for  the  loss  to  the  value  of  their  interest  in  the  vessel  and 
her  freight.  The  owners  of  the  other  vessel — a  British  steamer — except- 
ed to  the  jurisdiction.  The  collision  occurred  on  the  high  seas,  fifteen 
miles  south  of  Long  Island.  It  was  held  that  the  libel  was  properly 
filed  in  the  Southern  District,  because  the  litigation  as  to  the  liability 
for  the  collision  took  place  there;  the  stipulation  representing  the  value 
of  the  steamer  was  filed  there,  and  the  amount  of  the  recovery  by  the 
schooner  against  the  steamer  would  be  paid  into  court  there. 

In  Wallace  v.  Providence  &  Stonington  S.  S.  Co.  (C.  C.  Mass.,  Low- 
ell and  Nelson,  JJ.),  14  Fed.  Rep.  56  (1882),  it  was  held  that  the  libel 
could  be  filed  in  any  district  where  the  carrier  was  sued.  But  this  must 
be  taken  with  the  limitation  that  no  libel  in  Admiralty  has  been  filed 
against  the  vessel.  If  such  Hbel  has  been  filed,  the  proceedings  to 
limit  liability  must  be  taken  in  the  district  court  in  which  such  libel 
was  filed.  The  Luckenback,  26  Fed.  Rep.  870  (1886).  This  rule  was 
applied  in  The  Luckenback  to  a  case  in  which  a  decree  upon  the 
original  libel  had  been  rendered  in  the  District  Court  and  affirmed  in 
the  Circuit  Court,  and  an  appeal  had  been  taken  to  the  Supreme  Court 
of  the  United  States  before  the  commencement  of  the  proceedings  to 
limit  liability.  Judge  Brown  in  that  case  expresses  the  opinion  that 
Admiralty  Rule  58  (13  Otto,  xiii.  Desty  Fed.  Proc.  761)  applies  only  to 
cases  where  a  decree  in  a  proceeding  to  limit  liability  is  reversed  in  the 
Supreme  Court,  and  the  cause  remanded  to  the  Circuit  Court,  or  where 
such  proceeding  is  pending  in  the  Circuit  Court  on  appeal.  This 
opinion  was  not  necessary  to  the  decision  of  that  case,  but  it  has  been 
followed  by  Colt,  J.,  in  the  First  Circuit,  and  expresses  the  practice. 
The  Mary  Lord,  31  Fed.  Rep.  416  (1887). 

The  question  as  to  the  validity  of  these  Admiralty  Rules  was  raised 
in  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578  (1883). 
The  court  held  them  to  be  valid. 


PROCEDURE  UNDER   UNITED   STATES   STATUTE.         55 

nants  of  the  vessel  liave  been  brought.  The  filing  of  the 
stipulation  for  the  value  of  his  interest  in  the  ship  and 
her  freight  brings  into  court  the  res  itself,  and  is,  to  all 
intents  and  purposes,  substituted  for  it.^ 

The  District  Court  of  the  district  to  which  the  vessel 
is  bound,  has  jurisdiction  of  a  proceeding  to  limit  the  lia- 
bility of  her  owner,  upon  the  filing  in  that  court  of  the 
transfer  of  the  interest  of  the  owner  in  her  wreckage  and 
freight,  though  she  was  wrecked  within  another  district. 
In  this  case  the  proceedings  of  the  wreckage  and  freight 
were  paid  into  court.^ 

The  libel,  in  addition  to  the  usual  requirements,  must 
contain  five  articles: 

First.  The  pleader  must  state  whether  he  elects  to 
contest  his  client's  liability  altogether,  or  to  admit  this, 
and  simply  seek  to  limit  it.  In  the  English  practice  the 
question  of  liability  cannot  be  tried  in  the  action  brought 
to  limit  it.  This  must  be  tried  in  an  action  at  law,  or  up- 
on a  libel  in  Admiralty,  and  the  suit  for  the  limitation  of 
liability  is  stayed  to  await  the  result  of  such  action.  But 
in  this  country  both  questions  can  be  determined  in  one 
suit.  If  the  pleader  proposes  to  contest  the  owner's  liabil- 
ity altogether,  he  should  state,  in  detail,  the  grounds  of 

^  Whenever  a  stipulation  is  taken  in  an  Admiralty  suit,  for  the  prop- 
erty subjected  to  legal  process  and  condemnation,  the  stipulation  is 
deemed  a  mere  substitute  for  the  thing  itself,  and  the  stipulators  liable 
to  the  exercise  of  all  those  authorities  on  the  part  of  the  court  which  it 
could  properly  exercise  if  the  thing  itself  were  still  in  its  custody.  The 
Palmyra,  12  Wheat,  i,  10  (1827);  The  City  of  Norwich,  118  U.  S.  468, 
489  (1886). 

Admiralty  Rule  57:  "If  the  ship  have  already  been  libelled  and 
sold,  the  proceeds  shall  represent  the  same  for  the  purposes  of  these 
rules."  But  if  a  libel  in  rem  is  filed,  and  a  stipulation  for  the  value  of 
the  vessel  at  that  time  is  given,  this  stipulation  is  not  conclusive  as  to 
her  value  immediately  after  the  committing  of  the  tort,  respecting 
which  proceedings  to  limit  the  owner's  liability  are  subsequently  taken. 
The  City  of  Norwich,  118  U.  S.  468  (1886);  The  Doris  Eckhoff,  30 
Fed.  Rep.  140  (1887). 

2  Ex  parte  Slay  ton,  105  U.  S.  451  (i  881);  The  Alpena,  8  Fed.  Rep. 
280  (1881). 


56  THE   MODERN   LAW   OF   CARRIERS. 

his  defense — mucli  as  lie  would  in  an  answer  or  plea  in  an 
action  brought  to  recover  damages  for  the  injury  the  ship- 
pers or  passengers  have  suffered. 

Second.  The  pleader  must  determine  and  allege  in  his 
libel  whether  the  owner  abandons  his  interest  in  the  ship 
and  her  freight  then  pending,  or  elects  to  give  a  stipula- 
tion for  their  value.  Ordinarily  it  is  for  the  shipper's  in- 
terest that  the  owner  should  himself  take  the  steps  neces- 
sary to  save  all  that  can  be  saved.  He  is  more  familiar 
with  the  facts  necessary  to  be  known  to  make  this  sal- 
vage of  any  value.  It  is,  therefore,  more  in  harmony 
with  the  spirit  of  the  rule  to  give  the  stipulation.  The 
doubts  which  have  been  expressed  as  to  whether  the  giv- 
ing such  a  stipulation  is  a  compliance  with  the  Maritime 
law,  seem,  therefore,  unreasonable. 

Third.  The  libel  must  state,  as  nearly  as  may  be, 
the  particulars  of  the  loss  by  reason  of  which  the  owner 
seeks  the  protection  of  the  court : 

Fourth.  Also  that  the  loss  took  place  without  his  priv- 
ity or  knowledge : 

Fifth.  And  that  the  owner  seeks  the  benefit  of  the 
limitation  of  liability  given  by  the  statute  and  by  the 
Maritime  law. 

It  is  not  necessary  to  aver  that  the  claims  against  the 
vessel  exceed  her  value.^ 

When  the  libel  is  filed,  the  next  step  is  to  give  notice 
to  all  persons,  claiming  to  recover  damages  for  the  loss  in 
question,  to  come  into  court  and  assert  their  claims.  And 
if  the  libel  tenders  a  stipulation  for  value  instead  of  making 
an  abandonment  the  claimants  are  entitled  to  be  heard  on 
the  question  of  value. 

The  court  makes  an  order  referring  it  to  a  commissioner 
to  fix  the  amount  of  the  stipulation,  which  must  be  for  the 
value  of  the  libellant's  interest  in  the  vessel  and  her  freight 

1  The  Garden  City,  26  Fed.  Rep.  766  (1886). 


PROCEDURE   UNDER   UNITED   STATES   STATUTE.         57 

advertised  in  a  manner  to  be  fixed  by  tbe  court,  and  notice 
must  also  be  given  to  all  persons  who  Have  commenced 
actions  against  the  libellant  to  recover  damages  for  the 
loss  in  question.  This  may  be  given  either  personally  or 
by  mail,  and  it  may  be  given  to  them  or  their  attorneys  in 
the  suits  so  begun. 

It  was  claimed  in  the  Levinson  case,  already  referred 
to,^  that  the  service  of  this  notice  on  the  attorneys  was 
insufficient  to  give  the  court  jurisdiction  of  the  client. 
The  Circuit  Court,  however,  held  otherwise. 

That  this  decision  was  right  is  manifest  from  a  considera- 
tion of  the  nature  of  the  proceedings  to  limit  the  liability 
of  a  ship-owner.  These  are  primarily  in  rem^  inasmuch  as 
their  first  object  is  to  bring  into  court  and  surrender,  in 
one  form  or  another,  the  vessel  and  her  freight  then  pend- 
ing. The  decree  barring  claims  in  personam  against  the 
owner  is  incidental  to  the  proceeding  in  rem.  Jurisdiction 
of  this  suit  in  rem  is  gained  by  the  filing  of  the  petition 
and  the  offer  to  surrender  the  vessel  and  her  freight.  The 
process  issued  upon  the  filing  of  this  libel  is  "  due  process 
of  law,"  being  in  strict  conformity  with  the  immemorial 
practice  of  courts  of  admiralty.  The  proceedings  before 
the  commissioner  are  simply  to  fix  the  amount  of  the  stipu- 
lation. Courts,  both  of  law  and  admiralty,  have  always 
assumed  to  fix  the  amounts  of  bonds  and  stipulations,  and 
this  is  often,  in  the  first  instance,  done  ex  parte.  If  the 
amount  of  the  stipulation  in  these  proceedings  were  to  be 
fixed  ex  parte.,  it  would  be  open  to  any  person  interested 
afterwards  to  contest  the  amount,  and  claim  that  it  be 
increased.  It  is  therefore  more  convenient  that  all  known 
claimants  should  be  notified,  and  this  question  of  the 
amount  of  the  stipulation  settled  at  the  outset.  But  there 
are  frequently  some  claimants  then  unknown,  who  after- 
wards appear  in  answer  to  the  monition.     It  seems  certain 

^  Levinson  v.  Oceanic  Steam  Nav.  Co.,  17  Albany  L.  J.  285  (1876). 


58  THE    MODERN    LAW    OF    CARRIERS. 

then  pending.  Notice  of  the  hearing  before  him  must  be 
that  these  would  have  the  right  to  ask  the  court  to  increase 
the  amount  of  the  stipulation.  It  is  to  be  observed  that  the 
statute  does  not  provide  for  the  appraisement,  and  the  rule 
leaves  the  manner  of  making  it  in  the  discretion  of  the 
court.  In  the  Levinson  case,  the  question  as  to  the  proper 
manner  of  giving  notice  of  appraisement  was  treated  as 
the  same  as  that  of  the  jurisdiction  obtained  by  the  issue 
of  the  monition.  And  no  doubt  it  is  well  that  the  notice  of 
the  hearing  upon  the  application  to  fix  the  amount  of  the 
stipulation  should  be  served  in  the  way  in  which  monitions 
are  served.  This  method,  also,  is  not  provided  for  by 
statute,  but  it  is  in  conformity  with  the  ancient  practice  of 
courts  of  admiralty,  and  is  therefore  due  process  of  law.^ 

In  the  Levinson  case,  attorneys  had  been  entrusted  by 
the  claimants  with  the  prosecution  of  their  claims,  and 
notice  of  the  proceedings  to  limit  the  shipowner's  liability 
was  therefore  properly  served  upon  them. 

The  legislature  may  and  often  has  authorized  the 
courts  to  determine  how  notice  of  proceedings  in  court 
shall  be  given.     It  is  no  doubt  true  that  process  in  a  pro- 

^  In  the  matter  of  the  Empire  City  Bank,  18  N.  Y.  199  (1858),  the 
court  say,  p.  215: 

"  It  may  be  admitted  that  a  statute  which  should  authorize  any  debt 
or  damages  to  be  adjudged  against  a  person  upon  a  purely  ex  parte  pro- 
ceeding, without  a  pretence  of  notice  or  any  provision  for  defending, 
would  be  a  violation  of  the  constitution,  and  be  void;  but  where  the 
legislature  has  prescribed  a  kind  of  notice  by  which  it  is  reasonably 
probable  that  the  party  proceeded  against  will  be  apprised  of  what  is 
going  on  against  him,  and  an  opportunity  is  afforded  him  to  defend,  I 
am  of  opinion  that  the  courts  have  not  the  power  to  pronounce  the  pro- 
ceedings illegal.  ...  If  we  hold,  as  we  must  in  order  to  sustain 
this  legislation,  that  the  constitution  does  not  positively  require  per- 
sonal notice  in  order  to  constitute  a  legal  proceeding  due  process  of  law, 
it  then  belongs  to  the  legislature  to  determine  in  the  particular  instance 
whether  the  case  calls  for  this  kind  of  exceptional  legislation,  and  what 
manner  of  constructive  notice  shall  be  sufficient  to  reasonably  apprise  the 
party  proceeded  against  of  the  legal  steps  which  are  taken  against  him.'* 

To  the  same  effect  is  Levinson  v.  Oceanic  Steam  Navigation  Co.,  17 
Albany  L.  J.  285  (1876). 

See  also  cases  cited  in  next  note. 


procedure:  under  united  states  statute.       59 

ceeding  in  personam  must  be  served  within  the  jurisdiction 
of  the  court  from  which  it  issues.  If  this  be  done,  the 
service  need  not  be  personal.  Indeed,  both  at  common 
law  and  in  equity,  original  process  could  regularly  be 
served  by  leaving  a  copy  at  the  defendant's  residence. 

But  in  a  proceeding  in  rem^  the  rule  as  to  service  within 
the  jurisdiction  does  not  apply.  Notice  must  be  given, 
but  when  given  it  is  notice  to  all  the  world.  And  this 
doctrine  is  constantly  applied  to  proceedings  not  strictly 
in  reni^  but  of  a  kindred  character,  as  for  example  proceed- 
ings to  wind  up  the  affairs  of  a  bank,  of  a  partnership,  of 
a  deceased  person,  of  a  bankrupt.^ 

The  next  question  to  examine  is  as  to  the  extent  of 
the  stipulation  which  the  commissioner  must  require  to  be 
given.  In  general  it  must  be,  to  use  the  language  of  the 
statute,  for  *'  the  interest  of  such  owner  in  the  vessel  or 
her  freight  then  pending."  But  questions  of  great  import- 
ance have  arisen  upon  the  construction  of  these  terms. 


1  The  Empire  City  Bank,  i8  N.  Y.  199  (1858);  Campbell  v.  Evans, 
45  N.Y.  356(1871);  re  N.  Y.  Elevated  R.  R.,  70  N.  Y.327,  357  (1877); 
re  Village  of  Middletown,  82  N.  Y.  201  (1880);  Matter  of  the  Harmony 
F.  &  M.  Insurance  Co.,  45  N.  Y.  310  (1871).  The  constitutional  pro- 
vision that  no  person  shall  be  deprived  of  property,  &c.,  without  due 
process  of  law  does  not  require  proceedings  according  to  the  common 
law  or  personal  notice.  It  is  sufficient  if  a  kind  of  notice  is  provided 
which  is  reasonable.  Happy  v.  Mosher,  48  N.  Y.  313  (1872).  (This  was  a 
case  of  claims  against  vessels.)  Rockwell  v.  Nearing,  35  N.Y.  302  (1866); 
Gray  v.  Schenck,  4  N.  Y.  460  (185 1);  Jackson  v.  Babcock,  16  N.  Y.  246 
(1857);  Swan  V.  Williams,  2  Mich.  427  (1852);  Curry  v.  Mount  Sterling,  15 
III.  320  (1853);  Redfield  on  Railways,  sect.  72;  Methodist  Prot.  Church 
V.  Baltimore,  6  Gill  (Md.)  391  (1848);  State  v.  Mayor,  &c.,  of  Jersey 
City,  4  Zab.  (N.  J.)  662  (1855);  NichoUs  v.  Bridgeport,  23  Conn.  212 
(1854);  Hildreth  v.  City  of  Lowell,  11  Gray  (Mass.)  345  (1858). 

In  Stewart  v.  Board  of  Police,  25  Miss.  479  (1853),  the  court  held 
that  in  laying  out  a  new  road  no  notice  to  the  owners  of  land  over  which 
it  passed  was  necessary.  They  refer  to  the  practice  in  admiralty  and 
exchequer  courts.  "The  seizure  of  the  thing  on  which  the  judgment  is 
to  operate  is  considered  constructive  notice  to  everybody  in  interest. ' 
But  this  proposition  can  hardly  be  considered  as  sound  law  in  any  State 
but  Mississippi.  The  usual  rule  is  that  reasonable  notice  of  some  sort 
must  be  given  even  though  the  proceeding  be  in  rem. 


6o  THE   MODERN    LAW   OF   CARRIERvS. 

First.  Insurance. — On  the  hearing  before  the  Com- 
missioner, the  claimants  have  no  right  to  have  the  amount 
of  any  insurance  on  the  vessel  or  freight  included  in  the 
stipulation/ 

Second.  Advance  Freight  and  Passage  Money. — It 
has  been  contended  that  the  amount  of  any  advance 
freight  or  passage  money  received  by  the  libellant  should 
be  included  in  the  stipulation.  If  the  voyage  was  broken 
up  by  the  disaster  causing  the  loss,  so  that  the  passengers 
or  cargo  were  not  transported  to  their  destination,  the  pas- 
senger or  shipper  would,  by  the  American  rule,  which  is 
in  conformity  with  the  law  merchant,  have  a  right  to  the 
return  of  the  money  paid  in  advance  for  transportation.^ 


^  The  City  of  Norwich,  ii8  U.  S.  493  (1886);  s.  c.  sub  nom.  In  re 
Petition  Norwich  &  N.  Y.  Trans.  Co.,  17  Blatchf.  227  (1879);  8  Bened. 
317  (1875);  The  Scotland,  118  U.  S.  507  (1886);  The  Phestigo,  2  Flipp. 
C.  C.  466  (1879);  The  City  of  Columbus  (D.  C  Mass.),  22  Fed.  Rep. 
461  (1884).     See  text  to  notes  i  and  2,  page  70,  infra. 

By  the  Prussian  law  as  it  existed  before  1862,  the  owner  was  obliged 
to  surrender  the  amount  of  his  insurance  as  well  as  his  interest  in  the 
vessel.  But  this  was  changed  in  that  year  by  the  adoption  of  the  Code 
of  the  Germanic  Confederation.  Pohls:  Darstelling  des  Handelsrechts, 
vol.  3,  p.  234. 

^  The  continental  law  allows  prepaid  freight  and  passage  money  to 
be  recovered,  if  the  goods  or  passengers  are  not  transported  to  their 
destination  by  reason  of  disaster.  Ord.  de  la  Mar.  tit.  du  Fret.  art.  18 
(Valin  Comm.jvol.  i,  p.  661);  Roccus  de  Nav.  et  Maulo,  n.  80;  Cleirac, 
Les  Us  et  Contumes  de  la  Mer,  42;  Code  du  Commerce,  art.  302. 

In  the  U.  S.  the  first  reference  to  this  subject  appears  to  have  been 
made  by  Chief  Justice  Kent  in  1808,  in  Watson  v.  Duyckinck,  3  Johns. 
335'  337-  "  The  general  rule  undoubtedly,  is  that  freight  is  lost  unless 
the  goods  are  carried  to  the  port  of  destination.  The  rule  seems  to  go 
farther  and  to  oblige  the  master,  in  case  of  shipwreck,  to  restore  to  the 
shipper  the  freight  previously  advanced." 

In  The  Kimball,  3  Wall.  37  (1865),  the  U.  S.  Supreme  Court  holds  ac- 
cordingly, and  Justice  Field  says,  p.  44  :  ''  Freight  being  the  compensation 
for  the  carriage  of  goods,  if  paid  in  advance,  is  in  all  cases,  unless  there 
is  a  special  agreement  to  the  contrary,  to  be  refunded,  if  from  any  cause 
not  attributable  to  the  shipper  the  goods  be  not  carried."  The  prin- 
ciple thus  asserted  represents  the  law  in  the  U.  S.  Atwell  v.  Miller,  11 
Md.  348  (1857);  Lee  v.  Barreda,  16  Md.  190  (i860);  Griggs  v.  Austin, 
3  Pick.  20  (1825);  Brown  v.  Harris,  2  Gray,  359  (1854),  passage  money; 


PROCEDURE  UNDER  UNITED   STATES   STATUTE.        6 1 

It  would  seem  to  follow  that  in  sucli  a  case  the  inonej^ 
whicli  is  thus  held  by  the  libellant  should  not  be  paid  into 
court  or  included  in  the  amount  of  the  stipulation.  It 
can  hardly  be  contended  that  a  claim  for  its  return  would 
be  provable  against  the  amount  so  paid  into  court.  It  is 
not  a  claim  for  loss,  damage  or  injury  incurred  during 
the  voyage,  but  rather  a  cause  of  action  to  recover  the 
consideration  for  a  contract  which  the  other  contracting 
party  has  failed  to  perform.^ 


Benner  v.  Equitable  Safety  Ins.  Co.,  6  Allen,  222  (1863),  charter  party- 
case. 

In  The  Scotland,  ij8  U.  S.  507  (1886),  it  appeared  that  the  advance 
passage  money  was  refunded  in  part,  and  in  part  used  to  forward  the 
passengers  by  another  vessel,  and  it  was  held  that  the  owner  was  not 
chargeable  with  any  portion  of  it.  A  claim  for  return  of  advance 
freight  is  not  barred  by  abandonment  proceedings,  and  it  will  not  be 
stayed.  Re  Petition^  Liverpool  &  G.  W.  S.  Co.,  3  Fed.  Rep.  168  (1880). 
In  Wilson  v.  Dickson,  2  Barn.  &  Aid.  2,  15  (1818),  it  was  held  that 
"freight  due  or  to  grow  due"  meant  the  entire  freight  for 'the  voyage, 
whether  paid  in  advance  or  not.  But  this  seems  clear  under  the 
English  act,  the  language  of  which,  in  this  particular,  differs  from 
ours. 

^  Upon  this,  as  upon  so  many  other  points  of  maritime  law,  the 
rule  adopted  by  the  English  courts  differs  from  that  of  the  continental 
authorities,  and  from  that  adopted  in  this  country.  Freight  once  paid 
cannot,  it  is  held  in  England,  be  recovered  back,  even  though  the  voyage 
be  broken  up,  and  the  cargo  never  delivered.  Byrne  %k  Schiller,  L.  R. 
6  Ex.  319  (1871);  Hicks  v.  Shield,  7  E.  &  B.  633  (1857);  Jackson  v. 
Isaacs,  3  Hurl.  &  N.  405  (1858);  De  Cuadra  v.  Swan,  16  C  B.  (N.  S.) 
772  (1864);  Allison  V.  Bristol  Marine  Ins.  Co.,  L.  R.  i  App.  Cas.  209 
(1876). 

It  has,  however,  come  to  pass,  owing  to  the  fact  that  most  of  the 
commerce  between  Europe  and  America  is  conducted  in  British  bot- 
toms, that  a  great  deal  of  the  litigation  in  our  Courts  of  Admiralty  re- 
lates to  British  vessels.  In  no  case,  however,  as  yet,  has  the  owner  of  a 
British  vessel,  who  has  taken  proceedings  in  our  court  to  limit  his  liabil- 
ity, been  required  to  give  a  stipulation  for  an  amount  sufficient  to  cover 
the  advance  freight  or  passage  money  paid  him.  Freight  is  seldom,  but 
passage  money  is  almost  always  paid  in  advance. 

It  is  believed  that  the  courts  of  this  country  will  apply  the  American 
rule  in  such  cases,  and  not  require  the  British  owner,  in  case  of  loss,  to 
stipulate  for  a  larger  amount  than  an  American  owner  would  be  re- 
quired to  do.  Freight  or  passage  money  received  by  him  before  the 
beginning  of  the  voyage  can  hardly  be  described  as  freight  then  (that  is 
at  the  time  of  the  disaster)  pending. 


62  THE   MODERN   LAW   OF   CARRIERS. 

The  words  "  freight  then  pending,"  include  the  earn- 
ings of  the  vessel  in  carrying  the  goods  of  the  owners  of 
the  vessel/ 

The  extended  examination  which  has  been  given  in 
the  first  chapter  to  the  case  of  the  Norwich  Transportation 
Co.  V.  Wright,  13  Wall.  104  (1871),  makes  it  unnecessary 
to  do  more  than  repeat  here  that  in  estimating  the  value 
of  the  owner's  interest  in  the  vessel,  the  period  of  time  at 
which  the  value  of  the  interest  is  to  be  fixed  is  after  the 
tort  respecting  which  the  claim  is  made.* 

It  necessarily  follows  that  if  the  ship  sink,  and  be 
afterwards  raised,  the  value  of  the  owner's  interest  is  to  be 
determined  by  ascertaining  the  value  of  the  wreck  when 
raised,  and  deducting  therefrom  the  cost  of  raising  her. 
And  in  like  manner  any  enhancement  of  the  value  by 
reason  of  repairs  put  upon  the  vessel  is  not  to  be  con- 
sidered in  estimating  the  value  of  the  owner's  interest  in 
her.^ 

The  principles  bearing  on  this  subject  are  discussed  in  Chapter 
Eighth,  '*  The  Conflict  of  Laws." 

^  Allen  V.  Mackay,  i  Sprague,  219  (1854). 

^  The  time  at  which  the  value  is  to  be  determined  has  sometimes 
been  stated  to  be  "  immediately  after  the  injury."  But  in  a  case  where 
the  vessel  is  liable  for  an  injury,  was  subsequently  wrecked  on  the  same 
voyage,  and  was  abandoned  to  the  underwriters,  it  was  held  that  the 
limit  of  liability  was  the  value  of  the  wreck.  The  court  points  out  that 
this  necessarily  follows  from  the  language  of  sect.  4284,  which  gives  the 
owner  a  right  to  limit  his  liability  by  a  surrender,  and  that  all  claimants 
for  injuries  happening  on  the  same  voyage  share  in  the  fund.  Cases 
where  the  time  "  immediately  after  the  injury  "  has  been  fixed,  were 
either  cases  involving  only  the  question  of  subsequent  additions  to  the 
value  of  the  vessel,  as  by  raising  the  wreck  or  repairs  put  upon  it;  or 
cases  involving  the  contention  that  the  value  immediately  before  the 
injury  was  that  by  which  the  limit  of  liability  must  be  determined. 
"  The  termination  of  the  voyage  is  the  point  of  time  at  which  the  value 
of  the  offending  vessel  is  to  be  taken."  When,  therefore,  after  the 
injury  has  been  done,  the  offending  vessel  puts  back  and  is  by  the 
negligence  of  her  navigators  sunk,  the  voyage  terminates  with  the 
sinking,  and  the  value  of  the  wreck  is  the  value  of  the  owner's  interest. 
The  Great  Western,  118  U.  S.  520  (1&86);  The  City  of  Norwich,  118 
U.  S.  468  (1886).     See,  also,  next  note. 

3  The  Norwich  &  N.  Y.  Transp.  Co..  after  obtaining  the  favorable 


PROCEDURE   UNDER   UNITED   STATES   STATUTE.         63 

The  rules  of  evidence  in  the  Federal  Courts  of  each 
District  are  generally  the  same  as   those  in  the   State 


decision  of  the  Supreme  Court  in  the  Wright  Suit  (13  Wall.  104  [1871]), 
filed  a  petition  in  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  New  York  to  obtain  the  benefit  of  the  Act  of  Congress  as 
construed  by  the  Supreme  Court.  Accordingly,  the  court  made  an 
order  staying  all  proceedings  in  the  other  suits,  and  referring  the  matter 
to  the  clerk  to  report  the  value  of  the  owner's  interest  in  the  vessel  and 
her  freight.  Upon  exceptions  to  his  report  as  to  value,  the  court  say  : 
*'  Value  was  properly  ascertained  by  taking  what  she  was  proved  to  be 
worth  after  she  had  been  raised  and  deducting  therefrom  the  expenses 
of  raising  her.  Equally  unfounded  is  the  proposition  that  the  expenses 
of  raising  the  boat  and  the  expenses  of  her  subsequent  repairs  shall  be 
added  to  the  aforesaid  value.  The  exceptions  which  claim  that  such 
expenses  should  have  been  added  to  the  amount  reported,  are  also  over- 
ruled." 

Re  Norwich  &  N.  Y.  Transp.  Co.,  8  Bened.  314  (1875).  This  case 
was  affirmed  in  the  Circuit  Court,  17  Blatchf.  221  (1879),  ^rid  in  the 
Supreme  Court,  sub  110771.  The  City  of  Norwich,  118  U.  S.  468,  492 
(1886).     The  court  says: 

"  If,  however,  by  reason  of  the  loss  or  sinking  of  the  ship  the  voyage  is 
never  completed,  but  is  broken  up  and  ended  by  causes  over  which  the 
owners  have  no  control,  the  value  of  the  ship  (if  it  has  any  value)  at  the 
time  of  such  breaking  up  and  ending  of  the  voyage  must  be  taken  as 
the  measure  of  the  owner's  liability.  In  most  cases  of  this  character  no 
freight  will  be  earned  ;  but  if  any  shall  have  been  earned,  it  will  be 
added  to  the  value  of  the  ship  in  estimating  the  amount  of  the  owner's 
liability.  .  .  If  this  view  is  correct  it  follows,  as  a  matter  of  course, 
that  any  salvage  operations,  undertaken  for  the  purpose  of  recovering 
from  the  bottom  of  the  sea  any  portion  of  the  wreck,  after  the  disastrous 
ending  of  the  voyage  as  above  supposed,  can  have  no  effect  on  the 
question  of  the  liability  of  the  owners-  Their  liability  is  fixed  when 
the  voyage  is  ended.  The  subsequent  history  of  the  wreck  can  only 
furnish  evidence  of  its  value  at  that  point  of  time.  .  .  Having  fixed 
the  point  of  time  at  which  the  value  is  to  be  taken  the  statute  does  the 
rest.  It  declares  that  the  liability  of  the  owner  shall  in  no  case  exceed 
the  amount  or  value  of  the  interest  of  such  owner  in  such  vessel  and 
her  freight  then  pending.  If  the  vessel  arrives  in  port  in  a  damaged 
condition,  and  earns  some  freight,  the  value  at  that  time  is  the  measure 
of  liability;  if  she  goes  to  the  bottom  and  earns  no  freight,  the  value 
at  that  time  is  the  criterion.  ...  It  follows  from  this,  that  the  pro- 
per valuation  of  the  steamer  was  taken  in  the  court  below,  namely,  the 
value  which  she  had  when  she  had  sunk  and  was  lying  on  the  bottom 
of  the  sea.  That  was  the  termination  of  the  voyage."  The  Scotland, 
118  U.  S.  507  (1886);  The  Great  Western,  118  U.  S.  520  (1886). 

In  the  first  reported  American  decision  upon  the  Statute  of  1851, 
Watson  V.  Marks,  2  Am.  Law  Reg.  165,  Judge  Kane  said  :  "  It  is  im- 
possible to  give  effect  to  the  fourth  section  of  the  Act  of  Congress  un- 
less we  suppose  that  in  cases  of  affreightment,  at  least,  the  measure  of  his 


64  THE    MODERN   LAW   OF   CARRIERS. 

Courts  of  the  State  of  wliich  the  Federal  District  forms 
a  part.^ 

It  has,  however,  become  the  practice  in  the  Federal 
Courts  in  the  Southern  District  of  New  York,  and  pro- 
bably in  other  districts,  to  admit  evidence  of  the  value  of 
sister  ships,  upon  the  hearing  before  the  commissioner  as 
to  the  value  of  the  vessel  whose  owner  is  seeking  to  limit 
his  liabilit3^  The  rule  is  otherwise  in  the  courts  of  the 
State  of  New  York.^ 

The  amount  of  the  stipulation  for  the  value  of  the 
owner's  interest  in  the  freight  then  pending  is  limited  to 
the  net,  and  not  the  gross,  freight.  That  is  to  say,  the 
crew's  wages,  port  charges,  and  other  expenses  necessary 
to  enable  the  owner  to  realize  his  freight  monies,  and 
which  are  a  lien  upon  them,  must  be  deducted  from  the 

(ship-owner's)  liability  is  the  value  of  the  vessel  and  freight  at  the  time 
of  suit  brought."  The  section  referred  to  by  Judge  Kane  is  that  in- 
corporated in  sect.  4285,  of  the  Revised  Statutes,  and  relates  to  a  trans- 
fer of  the  owner's  interest  to  a  trustee.  No  doubt  if  such  a  transfer 
should  be  made  it  would  convey  the  vessel  as  she  was  at  the  time  of  the 
transfer.  But  as  has  been  stated,  the  usual  and  generally  preferable 
practice  is  to  give  a  stipulation  for  value,  and  to  this  Judge  Kane's 
reasoning  does  not  apply. 

^  The  rules  of  evidence  prescribed  by  the  laws  of  a  State  are  rules 
of  decision  for  the  U.  S.  Courts,  while  sitting  within  the  limits  of  such 
State,  under  the  34th  section  of  the  Judiciary  Act.  Ryan  v.  Bindley,  i 
Wall.  66  (1863);  Owings  v.  Hall,  9  Pet.  607,  625  (1835);  Fowler  v. 
Hecker,  4  Blatchf.  425  (i860);  Vance  v.  Campbell,  i  Black,  427  (186 1); 
Wright  V.  Bales,  2  Black,  535  (1862). 

But  "  the  laws  of  the  State  are  only  to  be  regarded  as  rules  of  decision 
in  the  Courts  of  the  United  States,  where  the  constitution,  treaties  or 
statutes  of  the  United  States  have  not  otherwise  provided.  When  the 
latter  speak,  they  are  controlling.  That  is  to  say,  on  all  subjects  on 
which  it  is  competent  for  them  to  speak.  There  can  be  no  doubt  that 
it  is  competent  for  Congress  to  declare  the  rules  of  evidence  which  shall 
prevail  in  the  courts  of  the  U.  S.,  not  affecting  rights  of  property,  and 
where  Congress  has  declared  the  rule,  the  State  law  is  silent."  Conn. 
Mut.  Life  Ins.  Co.  v.  Schaefer,  94  U.S. 457  (1876);  Potter  v.  Nat.  Bank, 
102  U.  S.  163  (1880);  King  V.  Worthington,  104  U.  S.  44  (1881). 

^  Blanchard  v.  N.  J.  Steamboat  Co.,  59  N.  Y.  292  (1874).  In  that 
case  the  court  say  (p.  300)  :  "  It  was  not  competent  for  the  defendant 
to  prove  the  value  of  the  Telegraph  by  showing  the  value  of  other  ves- 
sels with  which  she  might  be  compared." 


PROCEDURE    UNDER    UNITED    STATES    STATUTE.         65 

gross  freight.  This  would  seem  to  follow  logically  from 
the  decision  that  the  time  at  which  the  value  of  the 
vessel  is  fixed  is  immediatel}^  after  the  disaster.^  No 
freight,  except  what  is  actually  earned,  is  to  be  "  added  to 
the  value  of  the  ship  in  estimating  the  amount  of  the 
owner  s  liability."'  Conversely  whatever  freight  is  actually 
earned  on  the  voyage  is  to  be  added  to  the  value  of  the 
ship,  and  will  not  be  apportioned  pro  rata  ituicris  up  to 
the  time  of  the  disaster.^ 

When  the  commissioner  has  fixed  the  amount  which 
the  libellant  must  pa}''  into  court,  or  for  w^hich  he  must  give 
a  stipulation,  the  report  must  be  filed  and  notice  thereof 
given  in  the  usual  manner.  If  exceptions  to  it  are  filed, 
they  are  brought  to  a  hearing  upon  notice  to  the  exceptant's 
proctors  when  the  order  of  the  court  fixing  the  amount  of 
the  stipulation  or  payment  into  court  has  been  made. 

A  monition    issues    requiring  all   persons    who    have 

^  This  was  so  held  by  Judge  Choate  in  tlie  matter  of  the  Petition  of 
Corry  &  Co.  (owners  of  the  Star  of  Scotia),  not  reported  (1883).  It 
is  analogous  to  the  rule  as  to  general  average.  In  adjusting  general 
average  in  New  York,  the  common  practice  is  to  deduct  from  the  gross 
freight  one-half,  as  an  equivalent  for  the  crew's  wages,  port  charges,  &c. 
Marvin  on  Average,  71;  Dixon  on  Average,  149. 

In  The  Abbie  C.  Stubbs,  28  Fed.  Rep,  719  (1886),  Judge  Nelson,  in 
his  Massachusetts  district,  held  otherwise,  and  refused  to  allow  a  deduc- 
tion for  the  wages  expended  after  the  collision,  or  for  the  expense  of  a 
tug  in  towing  the  vessel  into  port.  In  The  Jose  E.  More,  37  Fed-  Rep. 
132  (1888),  it  was  held  that  all  expenses  incurred  after  collision  were 
to  be  deducted  from  gross  freight. 

-  The  City  of  Norwich,  118  U.  S.  468,  492  (1S86). 

^  The  Abbie  C.  Stubbs,  28  Fed.  Rep.  719  (18S6).  In  this  case  it 
was,  however,  held  that  '•  sums  paid  salvors  for  services  rendered  in 
getting  the  vessel  off  the  beach,  and  also  a  contribution  in  general 
average  for  the  cargo  jettisoned  "  were  extraordinary  expenses,  incurred 
for  the  preservation  of  the  vessel  and  freight,  as  well  as  of  the  cargo, 
and  for  the  common  benefit  after  the  libellants'  lien  had  attached. 
Deductions  on  account  of  them  were  therefore  allowed.  "  'I'he  salvage 
expenses  are  to  be  apportioned  upon  the  vessel,  freight  and  cargo  in 
proportion  to  their  respective  values,  and  the  shares  belonging  to  the 
vessel  and  freight  are  to  be  deducted  from  the  proceeds  in  the  registry. 
The  general  average  contribution,  apportioned  upon  the  vessel  and 
freight  for  cargo  jettisoned,  is  to  be  deducted  in  full."' 
5 


66  THE  MODERN  LAW  OF  CARRIERS. 

claims  against  the  libellant  by  reason  of  the  loss,  damage 
or  injury  mentioned  in  the  libel  to  appear  and  file  excep- 
tions or  answer  thereto.  This  monition  is  to  be  served  in 
the  same  way  as  the  ordinary  monition  in  admiralty  suits 
in  rem. 

On  its  return-day,  if  exceptions  or  any  answer  to  the 
libel  be  filed,  they  are  brought  to  a  hearing  in  due  course. 
If  none  be  filed,  an  interlocutory  decree  is  entered  referring 
it  to  a  commissioner  to  take  proof  of  the  facts  and  circum- 
stances stated  in  the  libel  and  to  advertise  for  claims 
against  the  libellant  respecting  the  loss,  damage  or  injury 
in  the  libel  mentioned. 

In  the  first  case  of  limitation  of  liability,  which  was 
seriously  contested  in  the  Southern  District  of  New  York, 
the  claimants  filed  no  answer  to  the  libel,  but  contested  on 
the  hearing  upon  the  interlocutory  decree  the  right  of  the 
libellant  to  sustain  the  cause  of  action  alleged  in  the 
libel.  They  contended  that  the  loss  of  the  steamer 
Atlantic  was  caused  by  a  defective  equipment,  viz.:  Want 
of  a  supply  of  coal  sufficient  for  her  voyage. 

It  is  submitted,  however,  as  the  better  practice,  to  inter- 
pose such  a  defence  as  this  by  way  of  answer  to  the  libel. 
The  interlocutory  decree  proceeds  on  the  ground  that  the 
libellant  has,  by  entering  the  default  of  all  persons  who 
have  not  answered  or  filed  exceptions,  established  his 
standing  in  court. 

In  like  manner  in  the  same  case,  the  libellant  con- 
tested before  the  commissioner  its  liability  altogether, 
alleging  that  the  loss  of  the  Atlantic  was  caused  by  a  cur- 
rent of  unusual  force,  the  strength  and  direction  of  which 
could  not  be  discovered  from  the  ship. 

But  the  more  regular  way  of  raising  this  issue  is  by 
an  answer  denying  the  averment  of  the  libel.  The  refer- 
ence to  the  commissioner  should  be  simply  a  reference  to 
compute. 

It  was  no  doubt  equitable  in  the  case  referred  to,  in 


PROCEDURE  UNDER   UNITED   STATES   STATUTE.        67 

view  of  the  novelty  of  the  proceeding,  that  the  time  of  all 
persons  to  contest  the  allegations  of  the  libellant  should 
thus  have  been  extended.  But  it  is  believed  that  the 
practice  suggested  is  more  in  harmony  with  that  usually 
adopted  by  courts  of  admiralty. 

The  report  of  the  commissioner  should  fix  the  amount 
of  the  injury  sustained  by  each  person  whose  claim  was  in 
evidence  before  him,  and  should  apportion  the  fund  among 
the  claimants  in  proportion  to  the  amount  of  each  claim. 

In  distributing  the  amount  for  which  the  owners  of  a 
vessel  are  held  to  be  liable  in  a  proceeding  to  limit  their 
liability,  the  distribution  must  be  made  solely  among 
those  who  are  injured  by  the  negligence  complained  of. 
Liens  for  seamens'  wages,  money  borrowed,  pilotage,  &c., 
are  not  entitled  to  payment  out  of  this  fund.^ 

In  the  English  practice  the  plaintiffs  in  any  suits 
brought  against  the  libellant  to  recover  for  the  loss,  dam- 
age or  injury  in  question,  have  the  right  to  costs  in  case 
the  question  of  liability  is  determined  against  the  libellant. 
And  a  similar  rule  seems  to  prevail  in  this  country.  No 
doubt  the  court  in  which  such  a  suit  was  pending  would 
not  allow  it  to  be  discontinued  except  on  payment  of  costs. 
It  may  be  added  that  costs  were  recovered  in  the  actions 
at  law,  brought  by  all  the  claimants  for  loss  sustained  by 
the  wreck  of  the  Atlantic,  who  proved  their  claims  before 
the  commissioner.^ 

^  The  Maria  and  Elizabeth,  12  Fed.  Rep.  627  (1882^;  The  Enter- 
prise, I  Lowell,  455  (1870);  The  Linda  Flor,  Swabey  Adm.  309  (1857). 

The  law  was  so  stated  by  Mr.  Justice  Bradley,  delivering  the  opinion 
of  the  Supreme  Court,  in  Norwich  Co.  v.  Wright,  13  Will.  122  (187 1): 
^'  Liens  for  reparation  for  wrong  done  are  superior  to  any  prior  liens  for 
money  borrowed,  wages,  pilotage,  &c.  But  they  stand  on  an  equality 
with  regard  to  each  other,  if  they  arise  from  the  same  cause." 

It  must,  of  course,  be  understood  that  this  exclusion  of  these  liens 
does  not  affect  the  individual  liability  of  the  owner  for  the  wages  or 
other  similar  claim.     The  Linda  Flor,  and  The  Enterprise,  su^ra. 

*  Similar  rulings  were  made  in  The  Benefactor,  103  U.  S,  245  (1880), 
and  The  Garden  City,  27  Fed.  Rep.  234  (1886). 

In  Place  v.  The  Norwich  Trasportation  Co.,  the  costs  taxed  to  the 


68  THE    MODERN    I,AW    OF    CARRIERS. 

If  exceptions  are  filed  to  this  report,  the}:  are  brought 
to  a  hearing  in  the  usual  way.  When  these  are  finally- 
disposed  of  and  an  order  made  upon  the  report,  the  money 
called  for  b}^  the  stipulation,  must  be  paid  into  court,  and. 
the  final  decree  of  distribution  is  then  entered. 

The  54th  admiral t}^  rule  of  the  Supreme  Court  provides 
for  granting  an  injunction  against  "the  further  prosecu- 
tion of  all  or  any  suit  or  suits  against  said  owner  or 
owners  in  respect  of  any  such  claim  or  claims." 

In  Dial  v.  Reynolds,^  that  court  says  that  no  court  of 
the  United  States,  except  under   the   bankrupt  act,  can 
grant  an  injunction  against  proceedings  in  a  State  court. 
This  was  prohibited  by  the  act  of  March  2,  1793  (i  Stat. 
33),  U.  S.  R.  S.,  sect.  720. 

But  the  attention  of  the  Supreme  Court  was  not  called 
to  the  power  of  the  District  Court,  sitting  in  admiralty,  in 
this  class  of  cases,  nor  did  the  facts  in  Dial  v.  Reynolds 
call  for  so  general  statement.     And  it  is  believed  that  the 


petitioner  in  the  District  Court  were  $20  docket  fee,  and  $20  fee  on 
reference  for  each  claim  proved  against  the  amount  of  the  stipulation. 
The  appellant  in  that  case  argued  in  the  Supreme  Court  that  this  was- 
erroneous: 

ist.  Because  the  petitioner  did  not  succeed  on  the  controversy  as  to 
its  being  liable  at  all,  and 

2d.  Because  in  any  case  only  one  docket  fee  and  one  fee  on  reference 
should  have  been  allowed. 

The  opinion  of  the  Supreme  Court  takes  no  notice  of  the  point,  and 
although  the  decree  was  affirmed,  yet  perhaps  it  may  be  considered  that 
the  question  is  open. 

In  the  Matter  of  the  x\tlantic,  not  reported  (Southern  District  of 
New  York,  1872),  only  one  docket  fee  and  one  fee  on  reference  was 
allowed.  It  would  seem  on  principle  that  this  is  more  correct  taxatior^ 
than  that  of  the  clerk  in  the  case  of  The  City  of  Norwich.  The  various 
claims  presented  are  all  in  one  matter.  In  surplus  and  remnant  proceed- 
ings, it  has  been  the  practice,  so  far  as  the  writer  can  learn,  to  tax  only 
one  fee,  although  numerous  claims  are  presented.  Were  the  rule  other- 
wise, it  might  often  happen,  as  it  did  in  the  case  of  The  City  of  Norwich, 
that  the  amount  allowed  the  petitioner  for  costs,  and  paid  out  of  the 
fund  in  court,  would  be  much  more  than  that  distributed  to  the  various, 
claimants. 

'  96  U.  5.340(1877). 


INJUNCTIONS    UNDER    UNITED   STATES   STATUTE.       69 

■'*  appropriate  proceedings "  mentioned  in  section  4284 
necessarily  involve  the  granting  the  injunction  provided 
for  in  rule  54.^ 

This  rule  is  itself  a  more  specific  expression  of  opinion 
on  this  subject,  and  while  it  is  true  that  the  Court  has  in 
one  instance'^  held  that  a  rule  previously  adopted  by  it 
was  unconstitutional  and  invalid,  yet  this  was  so  ex- 
jceptional  a  case  that  it  can  hardly  be  expected  to  occur 
again. 

It  is  clear  that  if  no  such  injunction  could  be  granted 
the  provisions  of  the  act  would,  in  many  cases,  be  inope- 
rative. Judgments  might  be  recovered  at  law  and  collected 
before  a  decree  in  Admiralty  could  be  obtained,  which 
would  be  pleadable  in  bar  in  the  action  at  law.  The  prac- 
tice in  Admiralty  in  this  class  of  cases  has  uniformly 
been  to  grant  such  injunctions. 

If  a  suit  against  the  owner  for  damages  caused  by  the 
collision  or  other  injury  in  question  is  pending  in  a  State 
court,  or  at  law  in  the  Circuit  Court,  it  would  be  unsafe 
to  allow  the  suit  to  proceed  to  judgment  before  commenc- 
ing proceedings  in  Admiralty  to  limit  the  owner's  liabil- 
ity. This  would  then  be  res  adjiidicata^  and  the  judg- 
ment in  the  State  court  would  be  entitled,  under  art.  IV, 
sect.  I,  of  the  Constitution  of  the  United  States,  and  sect. 
905  of  the  U.  S.  Revised  Statutes,  passed  in  pursuance 
therewith,  to  "  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  which  they  are 
taken."     It  is  clear  that  in  any  State  of  this  Union  the 


^  Sect.  720  of  R.  S.  prohibiting  injunctions  against  State  courts,  if 
it  would  apply  to  admiralty  proceedings,  is  limited  by  sect.  4285,  which 
provides  that  "all  suits  for  such  damage  shall  cease."  The  Oceanus,  6 
Benedict,  258  (1872);  Prov.  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U. 
8.578(1883). 

2  Ex  parte  Garland,  4  Wallace,  iZZ  (^867).  The  admiralty  rules  in 
(juestion  were  held  to  be  valid  in  Providence  &  N.  Y.  S.  S.  Co.  v. 
Hill  Mfg.  Co.,  supra. 


70  THE   MODERN   LAW   OF   CARRIERS. 

judgment  of  a  Court  of  Record  would  be  conclusive  as  to 
tlie  extent  of  tlie  liability  of  the  person  against  whom  it 
was  rendered/ 

It  is  therefore  expedient  in  all  cases  where  suits  at  law 
have  been  commenced  against  the  owner  of  a  vessel,  and  he 
is  entitled  to  avail  himself  of  the  provisions  of  law  limit- 
ing his  liability,  and  is  desirous  at  some  time  of  so  doing, 
that  he  should  obtain  an  injunction  from  a  District  Court 
of  the  United  States  against  the  prosecution  of  such  ac- 
tion at  lav/. 

It  is  in  the  discretion  of  the  court  in  which  the  pro- 
ceeding is  pending,  to  charge  the  owner  with  interest,  b}*- 
way  of  damages,  upon  the  value  of  his  interest  in  the  ship 
and  freight.  This  is  true,  even  in  a  case  where  the  owner 
actually  received  in  cash  the  value  of  this  interest,  long 
before  the  period  when  he  paid  it  into  court. ^ 

It  is  submitted,  however,  that  the  Circuit  Court  in  this 
instance  did  not  charge  the  owner  with  interest,  owing  to 
the  novelty  of  the  questions  involved,  and  the  uncertainty 
which  had  prevailed  as  to  the  practice,  and  that  hereafter 
interest  would  probably  be  charged  against  the  owner, 
from  the  time  the  proceeds  of  his  interest  in  the  ship  and 
freight  came  into  his  hands. 

lVhe7i    the   abandonment   may  be  made. — The  owner 

'  The  question  of  negligence,  if  determined  in  the  first  instance,  up- 
on a  libel  against  the  offending  vessel,  becomes  res  adjudicata,  and  can- 
not be  reopened  upon  a  proceeding  to  limit  her  owner's  liability.  The 
Maria  and  Elizabeth,  12  Fed.  Rep.  627  (1882). 

-  The  Scotland,  118  U.  S.  507  (1886).  The  usual  practice  in  the 
English  courts  is  to  allow  interest  in  such  cases.  African  Steamship  Co. 
V.  Swanzy,  25  L.  J.  N.  S.  Ch.  870  (1856);  General  Iron  Screw  Collier 
Co.  V.  Schurmanns,  29  L.  J.  N.  S.  Ch.  877  (i860) ;  Nixon  v.  Roberts,  30 
L.  J.  N.  S.  Ch.  844  (1861);  Straker  v.  Hartland,  34  L.  J.  N.  S.  Ch.  122 
(1865);  Smith  V.  Kirby,  L.  R.  i  Qu.  B.  Div.  131  (1S75V;  The  Sisters,  2 
Aspinall's  Maritime  L.  C  N.  S.  589  (1875);  The  Northumbria,  L.  R.  3, 
Ad.  &  Ec.  6  (1869). 

In  The  Jose  E.  Moore,  37  Fed.  Rep.  132  (1888),  interest  was  al- 
lowed from  the  date  of  the  District  Court  judgments.  So  it  was  in  The 
Manitoba,  122  U.  S.  97  (1887). 


SURRENDER  UNDER  UNITED  STATES  STATUTE.    7 1 

may  offer  to  surrender  his  interest  in  the  vessel  and  her 
freight,  or  give  a  stipulation  for  their  value,  and  thus  take 
the. benefit  of  the  law  limiting  his  liability  to  such  value, 
at  any  time  before  the  entry  of  the  final  decree  against 
him,  in  any  District  Court  of  the  United  States.  He 
may  also  do  so  during  the  pendency  of  an  appeal  to  the 
Circuit  Court  from  a  final  decree  against  him  in  the  Dis- 
trict Court.^ 

It  is  not  necessary  that  the  owner  should  take  affirma- 
tive proceedings  in  Admiralty  to  limit  his  liability.  The 
rules  on  this  subject  enable  him  to  bring  all  parties  hav- 
ing claims  against  him  before  the  court  in  one  proceeding. 
But  "where  all  the  parties  injured  are  represented  as  li- 
bellants  or  inten^enors  in  the  cause,  an  answer  setting  up 
the  defense  of  limited  responsibility  is  fully  adequate  to 
give  the  ship-owners  all  the  protection  which  they  need."  ^ 


^  The  French  law  is  the  same,  but  the  French  courts  hold  that  such 
an  abandonment  comes  too  late  after  an  appeal  has  been  taken  to  the 
Court  of  Cassation,  which  is  the  French  tribunal  corresponding  most 
nearly  to  the  Supreme  Court  of  the  United  States. 

Journal  du  Palais,  vol.  9,  tit.  Navire,  sects.  301-304. 

Ibid,  Table  Complementaire,  vol.  i,  p.  118,  sect.  32. 

*  The  Scotland,  105  U.  S.  24  (1882);  revg.  s.  c.  sub  nom.  Dyer  v. 
National  Steam  Nav.  Co.,  14  Blatchf.  483  (1878). 

In  this  case  that  portion  of  the  answer  which  it  was  held  was  suf- 
ficient to  set  up  the  defense  was  as  follows:  ''Respondents,  further 
answering,  say  that  said  steamer  Scotland  was  by  said  collision  sunk  and 
destroyed,  and  that  there  is  no  liability  in  personam  against  these  re- 
spondents for  said  loss  of  The  Kate  Dyer." 

This  overrules  The  Maria  and  Elizabeth,  11  Fed.  Rep.  520  (1882), 
so  far  as  it  is  inconsistent.  It  does  not  appear  in  that  report  whether 
the  defense  under  the  Act  of  Congress  was  set  up  in  the  answer.  And 
it  does  appear  in  the  report  of  the  same  case  on  a  later  hearing  (12  Fed. 
Rep.  627  [1882J),  that  the  libtllant  contended  that  the  loss  was  incurred 
with  the  privity  or  knowledge  of  one  of  the  owners.  It  has  been  held 
that  the  answer  in  a  suit  at  law  setting  up  limited  liability  proceedings 
must  allege  the  surrender  of  the  ship  or  a  stipulation  for  its  value,  or 
else  its  total  loss.  Feldman  v.  De  Nederlandsche,  &:c.  Co.,  City  Court 
of  N.  Y.,  Daily  Register,  Sept.  20,  1884. 

Such  a  surrender  or  its  equivalent  is  necessary  where  there  are 
many  claimants,  and  it  is  desired  to  restrain  them  from  proceeding 
with  their  several  suits.     But  in  The  Great  Western,    118    U.    S.    520 


72  THE   MODERN    LAW    OF    CARRIERS. 

In  such  case  "it  will  be  sufficient  if  the  amount  is 
paid  after  the  trial  of  the  cause  and  the  ascertainment  of 
the  amount  of  liability  in  the  decree.  Pa3'ment  and  sat- 
isfaction of  the  decree  will  be  a  discharge  of  the  OM^ner  as 
against  all  creditors  represented  in  the  decree.^ 

The  surrender  of  the  owner  s  interest  ma}^  be  made, 
and  he  may  take  the  benefit  of  the  limitation  of  liability 
provided  by  law,  although  he  has  previoush^  abandoned 
the  vessel  and  freight  to  the  undenvriters.~ 

This  seems,  at  first,  anomalous,  but  is  justified  by  the 
French  authorities  for  the  reason  that  the  lien  in  Admir- 
alty of  all  persons  having  claims  against  the  ship  and 
freight  continues  to  bind  both,  even  after  they  are  trans- 
ferred to  a  bona  fide  vendee,^  and  the  insurer,  therefore,  re- 
ceives the  transfer  of  the  owner's  interest,  subject  to  the 
right  of  the  owner  to  surrender  them  in  discharge  of  his 
liability  for  any  loss,  damage  or  injury  caused  by  the  ship 
or  her  navigators  without  his  privity. 

In  The  Great  Western*  the  Supreme  Court  arrived  at 

(1886);    affg.    s.  C.    sub  nom.  Thommessen  v.  Whitwill,  21  Blatchf.  45; 
12  Fed.  Rep.  891  (1882).  the  court  say  (p.  525): 

"The  answer,  as  originally  framed,  set  up  the  defense  that  the  lia- 
bility of  the  respondent  was  limited  to  the  amount  or  value  of  his  in- 
terest in  The  Great  Western  and  her  freight  upon  the  voyage,  and 
averred  that  that  interest  was  of  no  value.  The  issue  being  thus  raised, 
the  respondent  was  entitled  to  have  the  decree  against  him  in  that  cause 
limited  to  the  amount  which  should  be  shown,  by  the  proofs  on  the 
trial,  to  be  the  value  of  said  steamer  and  freight  at  the  termination  of 
the  voyage.  He  did  not  need  to  make  any  surrender  or  attempt  at  a 
surrender.  A  surrender  of  the  vessel,  or  payment  of  her  proceeds,  or 
value,  into  court  would  have  been  necessary  in  order  to  bring  other 
creditors  into  concourse  with  the  libellants;  but  for  the  mere  defense 
of  that  cause  it  was  not  necessary." 

1  The  City  of  Norwich,  118  U.  S.  468,  503  (1886);  The  Great 
Western,  118  U.  S.  520  (1886);  affg.  s.  c.  sub  notu.  Thommessen  v. 
Whitwill.  21  Blatchf.  45  (1882). 

2  This  is  the  French  law.  Journal  du  Palais,  vol.  9,  title  Navire, 
sect.  210  ;    Thommessen  v.  Whitwill,  12  Fed.  Rep.  891  (1882). 

'  Sheppard  v.  Taylor,  5  Pet.  675.  712  (1831) ;  The  Rebecca,  Ware 
187,  212  {1831). 

*  118  U.  S.  520  (1886). 


THE    UNITED   STATES   STATUTE.  73 

the  same  conclusion,  but  by  a  different  process  of  reason- 
ing. The  limitation  of  liability  under  the  United  States 
Statute  does  not  depend  upon  the  surrender  by  the  owner 
of  his  interest.  He  may,  instead,  pa}^  its  value  into  court, 
and  in  that  case  what  he  does  or  has  done  with  his  interest, 
itself,  in  the  ship  and  freight,  is  immaterial. 

If,  at  the  conclusion  of  the  proceedings,  it  should  ap- 
pear that  the  total  amount  of  the  claims  proved  and  al- 
lowed is  less  than  the  value  of  the  vessel,  the  jurisdiction 
of  the  court  will  not  thereby  be  ousted,  provided  the 
amount  of  the  claims  was  for  more  than  her  value. ^ 

It  has  been  more  common,  in  proceedings  to  limit  the 
liabilit3'-  of  owners,  to  give  a  stipulation  for  the  value  of 
the  interest  of  the  owner  in  the  abandoned  vessel.  But 
in  some  cases  the  alternative  of  the  statute  has  been  fol- 
lowed, and  a  conveyance  has  been  made  to  a  trustee  ap- 
pointed by  the  court.  This,  as  has  been  shown,  is  strictly 
analogous  to  the  practice  in  the  Continental  courts.  The 
first  point  to  be  considered  is  the  citizenship  of  the  trustee. 
Most  nations  require  that  the  title  to  their  own  ships 
should  be  held  by  citizens  of  the  country  to  which  the 
ship  belongs.  If  the  wreck  abandoned  is  a  British  ship, 
the  trustee  must  be  a  British  subject;  if  it  be  an  Ameri- 
can ship,  the  trustee  must  be  an  American  citizen.  It  is 
usual  to  require  the  trustee  to  give  a  bond  for  the  faithful 
discharge  of  his  duty,  in  a  sum  to  be  fixed  by  the  court. 
He  should,  after  his  appointment  and  qualification,  pro- 
ceed, with  reasonable  diligence,  to  sell  the  vessel.  The 
same  may  be  at  auction  or  at  private  sale,  as  the  court 
may  direct.     The  marshal  is  not  entitled  to  a  commission 


1  Briggs  V.  Day,  The  H.  W.  Hills,  21  Fed.  Rep.  727  (1884).  In  this 
case  Judge  Brown  says:  "There  may  also  be  other  claims  hereafter  pre- 
sented." This  could  only  happen  if  the  court  should  reopen  the  case 
to  allow  additional  claims  to  be  proved.  Ordinarily  the  claims  not  pre- 
sented within  the  time  fixed  bv  the  court  are  liarred.  See  The  Garden 
City,  26  Fed.  Rep.  766  (t886).' 


74  THE    MODERN    LAW    OF    CARRIERS. 

on  the  proceeds  of  such  sale,  but  if  the  proceeds  are  paid 
into  court,  the  clerk  is  entitled  to  a  commission  on  the 
proceeds,  even  though  the  liability  of  the  owner  be  con- 
tested.' 

'  The  Vernon,  36  Fed.  Rep.  113  (i 


PART  II. 

LIMITATION    OF    LIABILITY    BY    CONTRACT. 


CHAPTER  IV. 

THE  RIGHT  OF  THE  CARRIER  TO  LIMIT  HIS  LIABILITY  BY 
CONTRACT,  AND  BY  RULES  AND  REGULATIONS  OF 
HIS    OWN,    AS   AFFECTED    BY    PUBLIC    POLICY. 


INTRODUCTION. 

The  same  experience  of  the  injustice,  in  many  cases 
caused  by  the  extreme  liability  imposed  upon  common 
carriers  both  by  the  common  and  the  civil  law,  which  gave 
rise  to  the  limitations  of  the  law  merchant,  so  far  as  car- 
riers by  sea  were  concerned,  was  the  origin  of  numerous 
attempts  by  carriers  on  land  to  limit  their  liability  through 
the  medium  of  notices  and  contracts.  Lines  of  transporta- 
tion for  freight  and  passengers  became  more  numerous, 
and  it  was  claimed  that  the  business  could  not  be  conducted 
at  reasonable  rates,  unless  some  limitation  could  be  placed 
upon  this  liability,  which  was,  to  almost  all  intents  and 
purposes,  that  of  an  insurer.  At  first  the  courts  were  in- 
clined to  admit  the  right  of  the  carrier  to  limit  his  liability 
by  a  mere  notice.^  But  carriers  speedily  made  an  unreason- 
able use  of  the  latitude  thus  afforded,  and  the  language  of 
their  notices  became  so  broad  as  practically  to  leave  little 
responsibility  of  any  sort.     The  natural  result  of  this  was, 

/•  Covington  ?;.  Willan,  Gow,  115  (1819);  Peek  v.  North  Staffordshire 
R.  Co..  10  House  of  Lords  Ca.  473  (1863). 


76  THE    MODERN    LAW    OF    CARRIERS. 

that  the  right  to  restrict  their  liability  at  all  came  to  be 
disputed,  and  in  several  reported  decisions  it  was  held  that 
the  liability  of  the  carrier  was  created  by  law  and  could 
not  be  modified  or  diminished  by  either  notice  or  contract. 
But  these  cases  were  finally  upon  more  mature  considera- 
tion modified,  and  the  courts  both  in  England  and  America, 
both  State  and  Federal,  determined  that  the  liability  of  the 
carrier  could  be  to  a  certain  extent  limited  by  contract  be- 
tween himself  and  the  shipper  or  the  passenger,  but  that 
a  mere  notice  from  the  carrier  would  not  have  this  effect.^ 

In  some  cases  it  has  been  held  that  a  notice  assented  to 
by  the  shipper  would  constitute  a  contract.  These  will  be 
considered  in  the  tenth  chapter. 

A  certain  limited  scope  has  also  been  allowed  by  the 

^  N.  J.  Steam  Nav.  Co.  v.  Merchants'  Bank, 6  How.  U.S.  344  (1848); 
Dorr  V.  N.  J.  Steam  Nav.  Co.,  11  N.  Y.  485  (1854).  These  two 
cases  were  suits  for  goods  destroyed  by  fire  on  the  Steamer  Lexington. 
The  latter  case  reversed  s.  c.  4  Sandf.  S.  C.  R.  136  (1850),  and  over- 
ruled Gould  V.  Hill,  2  Hill,  623  (1842);  Hollister  z'.  Nowlen,  19  Wend. 
234;  Cole  V.  Goodwin,  Ibid,  251  (1838) ;  Reno  v.  Hogan,  12  B.  Monr. 
(Ky.)  6^  (1851);  s.  c.  54  Am.  Dec.  513;  Farmers  &  Mechanics'  Bank  v. 
Champlain  Transportation  Co.,  23  Vermont,  186  (1851);  Farnham  v. 
Camden  &  Amboy  R.  R.,  55  Penn  53  (1867). 

The  following  extract  from  the  opinion  in  Derwort  v.  Loomer,  21 
Conn.  244  (185 1),  will  illustrate  some  of  the  causes  that  led  to  the  deci- 
sions stated  in  the  text.  "  It  is  no  apology  that  freight  is  put  upon  these 
stages,  as  in  this  case,  under  public  or  any  other  notices.  The  liability 
continues  the  same.  Nor  is  it  any  apology  that  stage  proprietors  and 
their  drivers  are  accustomed  to  load  stages  with  passengers  and  freight, 
notwithstanding  the  state  of  the  roads,  until  nothing  more  can  be  crowded 
within  or  accumulated  on  the  top.  It  is  high  time  that  the  law  on 
this  subject  should  be  better  understood  and  regarded,  and  that  such 
unpardonable  liberties  should  cease  to  be  taken,  by  persons  who  stipu- 
late to  carry  passengers  safely,  and  without  exposure.  Converting 
coaches  into  freight  wagons  to  transport  iron  and  well  nigh  everything 
else,  is  the  last  innovation  upon  the  rights  of  the  traveling  community, 
and  it  is  one  which  we  do  not  intend  to  sanction  or  countenance." 
Transportation  Co.  v.  Newhall,  24  111.  466  (i860);  Lewis  v.  N.  Y.  Sleep- 
ing Car  Co.  &  Wing  v.  Same,  143  Mass.  267  (1886).  In  this  case  it  was 
held  that  a  notice  posted  in  a  sleeping  car  that  the  company  would  not 
be  responsible  to  passengers  for  valuables,  was  of  no  avail  as  a  defense, 
and  the  company  was  held  liable  for  a  "  reasonable  amount  of  money 
for  traveling  purposes  stolen  from  the  travelers'  clothing  while  asleep." 
The  notice  was  not  seen  by  the  plaintiffs. 


LIABILITY    FOR    DEFECTIVE    EQUIPMENT.  77 

courts  to  rules  and  regulations  made  by  the  carrier  re- 
specting the  conduct  of  his  business.  The  cases  on  this 
subject  will  be  considered  in  the  seventh  chapter.  With 
these  limitations,  the  rule  that  a  carrier  can  limit  his 
liability  b}^  contract  only  is  well  established. 

The  next  question  of  importance  that  arose  for  deter- 
mination was,  whether  it  was  lawful  to  make  a  contract 
exempting  the  carrier  from  liability  for  negligence,  either 
his  own  or  that  of  his  servants.  To  an  examination  of 
this  question  the  remainder  of  this  chapter  will  be  devoted. 

SECTION   I. 

PERSONAL  NEGLIGENCE.     DEFECTIVE  EQUIPMENT. 

A  contract  by  which  it  is  agreed  that  the  carrier  shall 
not  be  liable  for  his  personal  negligence,  is  unreasonable 
and  invalid.^     The  carrier  may  and  generally  does  act  by 

1  Keefe  v.  Boston  &  Albany  R.  R.  Co.,  142  Mass.  251  (1887)7 
Welsh  V.  Pittsburgh,  Fort  Wayne  &  Chicago  R.  R.,  10  Ohio  St.  Rep.  65 
(1859).  In  this  case  the  special  contract  which  was  for  the  transporta- 
tion of  live  stock,  expressly  provided  that  the  carrier  should  not  be 
liable  for  the  unsafe  condition  of  the  doors  of  its  cattle  cars.  This 
agreement  was  signed  by  the  owner.  The  doors  of  the  cattle  cars  were 
defective,  they  gave  way  while  the  train  was  in  motion,  the  cattle  fell 
out  and  were  injured.  It  was  held  that  the  carrier  was  liable,  and  that 
the  clause  to  the  contrary  was  void.  It  is  true  that  in  this  case  the 
owner  observed  the  dangerous  condition  of  the  doors,  and  called  the 
attention  of  the  carrier's  agent  to  it.  The  latter  promised  to  have  them 
repaired.  This  oral  agreement,  however,  was  before  the  written  contract 
was  signed,  and  clearly  was  merged  in  the  latter.  The  evidence  on  this 
subject  was  only  admissible  to  rebut  the  presumption  of  concurrent 
negligence,  that  might  have  arisen  from  the  proof  as  to  the  shipper's 
knowledge  of  the  dangerous  condition  of  the  doors. 

Hawkins  v.  Great  Western  R.  R.,  17  Mich.  57  (1868).  In  this  case 
the  contract  provided  for  exemption  from  liability  for  the  negligence,. 
"  gross,  or  culpable  or  otherwise,  on  the  part  of  the  railway  company's 
agents  or  officers."  The  court  held  that  this  did  not  exempt  from 
liability  for  damages  caused  by  a  defective  car.  In  Smith  v.  N.  Y.  Cen- 
tral R.  R.,  24  N.  Y.  222  (1862),  it  was  held  that  a  contract  exempting 
the  carrier  from  liability  for  personal  injury,  "from  whatever  cause," 
sustained  by  a  drover  accompanying  cattle,  did  not  relieve  the  carrier 
from  liability  for  the  drover's  death,  which  was  caused  by  the  use  of  an 
unsafe  and  unsuitable  car.  It  is  true  that  in  this  case,  under  the  rule 
laid  down  by   later  decisions,  the  language  of  the  agreement  was  not 


78  THE  MODERN  LAW  OF  CARRIERS. 

agents,  and  in  tlie  case  of  a  corporation  always  must  do  so. 
But  nevertheless  there  is  such  a  thing  as  negligence  im- 
putable to  the  carrier,  whether  a  corporation  or  not,  as 
distinguished  from  the  negligence  of  its  agents.  For 
example,  a  railroad  company  is  bound  to  provide  a  road-bed, 
rails,  ties,  engines,  cars,  and  appliances  of  all  kinds,  of  the 
best  character  and  description  that  can  reasonably  be  pro- 
cured, and  that  are  by  other  railroad  companies  recog- 
nized as  desirable  and  proper  to  be  used.  It  is  not 
bound  to  try  experiments,  but  it  is  bound  to  keep  up  with 
the  process  of  invention,  as  tested  by  experience,  and  if 
its  agents  fail  to  fulfill  the  duty  thus  devolved  upon  the 
carrier,  the  breach  of  this  duty  is  treated  as  the  carrier's 
personal  negligence.^ 

broad  enough  to  cover  the  negligence,  even  of  an  agent.  Mynard  v. 
Syracuse,  &c.,  R.  R.  Co.,  71  N.  Y.  180  (1877).  But  the  court  do  not 
put  the  decision  in  the  Smith  case  upon  this  ground  but  on  that  already 
stated. 

In  Indianoplis,  Bloomington  &  Western  R.  R.  v.  Strain,  81  111.  504 
(1876),  it  was  held  that  the  carrier  was  liable  for  injuries  to  live  stock 
caused  by  their  escaping  from  a  defective  car,  beyond  the  terminus  of 
the  carrier's  road.  The  special  contract  provided  that  the  carrier 
should  not  be  liable  for  injuries  beyond  such  a  terminus,  but  the  court 
refused  to  construe  this  so  as  to  exempt  from  liability  for  injuries  caused 
by  its  own  defective  car. 

In  England  a  stipulation  exempting  a  carrier  from  injuries  caused  by 
a  defective  car  was  held  to  be  unreasonable  and  invalid.  McManus  v. 
Lancashire  &  Y.  R.  Co.,  4  H.  &  N.  327  (1854);  Gregory  v.  West  Mid- 
land Co.,  2  H.  &  C.  944  (1864) ;  Contra,  Chippendale  v.  Lancashire  and 
Yorkshire  R.  Co.,  15  Jur.  1106;  s.  c  12  L.  J.  Q.  B.  22  (1851). 

In  111.  Cent.  R.  R.  Co.  v.  Haynes,  6;^  Miss.  485  (1886),  it  was  said 
a  shipper  could  only  demand  suitable,  safe,  and  sufficient  shipping,  not 
the  best  in  use. 

1  Hall  V.  Conn.  River  Steamboat  Co  ,  13  Conn.  326  (1839);  TuUer 
V.  Talbot,  23  111.  357  (i860);  Pittsburgh.  C-  &  St.  L.  R.  R.  v.  Thompson, 
56  111.  138  (1870);  St.  Louis  &  S.  E.  R'y  Co.  v.  Dorman.  72  111.  504 
(1874);  R"y  Co.  V.  Hamilton,  76  111.  393  (1875);  Same  v.  Durkin,  76  111. 
395;  Indianapolis,  B.  &  W.  R'y  Cc.  v.  Strain,  81  111.  504  (1876);  Mc- 
Donald &  Wife  V.  Chicago  &  N.  W.  R'y  Co.,  26  Iowa,  124  (1868);  In- 
galls  V.  Bills,  9  Met.  (Mass.)  i  (1845);  McElroy  v.  Nashua  &  Lowell  R. 
R.,  4  Cush.  (Mass.)  400  (1849);  Warren  v.  Fitchburg  R.  R.,  8  Allen 
(Mass.).  227  (1864);  Smith  v.  New  Haven  &  Northlmmpton  R.  R.,  12  Ibid, 
531  (1866);  Simmons  z/.  New  Bedford,  etc.,  Steamboat  Co.,  97  Mass.  361 
(1867);  Dunn  V.  Grand  Trunk  R.  R.  Co.,  58  Me.  187  (1875);  Beard  v. 


RIGHT    OF    THE    CARRIER.  79 

The  litigation  on  this  topic  has  often  arisen  in  that 
numerous  class  of  cases  in  which  employers,  whether  car- 
Conn.  &  Pass.  R.  R.  Co.,  48  Vt.  loi  (1875);  Smith  v.  N.  Y.  Central  R. 
R.  Co.,  24  N.  Y.  222  (1862);  Steinweg  v.  Erie  R'y>  43  N.  Y.  123  (1870); 
Benzing  v.  Steinway,  loi  N.  Y.  547  (1886);  Bevier  v.  Delaware  &: 
Hudson  Canal  Co.,  13  Hun  {N.  Y.),  254  (1878);  Potter  v.  Sharp,  24 
Hun  (N.  Y.),  179  (1881);  Indianapolis,  &c..  R.  R.  v.  Horst,  93  U.  S. 
(3  Otto)  291  (1876);  Steamboat  "  New  World  "  v-  King,  16  How.  (U.  S.) 
469  (1853);  The  Rover,  zi  Fed.  Rep.  515  (1887),  S.  D.  of  N.  Y.  In  Smith 
V.  British  &  N.  A.  R.  M.  S.  P.  Co.,  86  N.  Y.  408  (1881)  ;  affg.  s.  c.  46  N. 
Y.  Superior  Ct.  86  (1880),  the  plaintiff  was  a  steerage  passenger  in  one 
of  defendant's  steamships.  She  had  a  berth  in  a  section  built  in  two 
tiers.  The  tiers  were  defectively  constructed  and  the  upper  tier  fell  in 
the  night.  The  fail  and  screams  of  those  occupying  the  berths  so 
alarmed  plaintiff  that  she  became  helpless.  In  this  condition  she  was 
removed  from  her  berth  and  placed  upon  her  feet.  Being  unable  to 
help  herself  she  was  thrown  by  the  roUing  of  the  ship  against  an  open 
door  and  injured.  It  was  held  by  a  divided  court  that  the  defective 
construction  of  the  berths  was  the  real  cause  of  the  injury,  and  that  the 
defendant  was  therefore  liable. 

In  Indianapolis,  &c.,  R.  R.  v.  Horst,  93  U.  S.  (3  Otto)  291  (1876),  the 
plaintiff  was  injured  while  traveling  on  a  freight  train  in  charge  of  cat- 
tle. The  court  say:  "Life  and  limb  are  as  valuable,  and  there  is  the 
the  same  right  to  safety  in  the  caboose  as  in  the  palace  car.  The  rule 
is  uniformly  applied  to  passenger  trains.  The  same  considerations  apply 
to  freight  trains;  the  same  dangers  are  common  to  both.  There  is  no 
reason  in  the  nature  of  things  why  the  passenger  should  not  be  as  safe 
upon  one  as  the  other,  with  proper  vigilance  on  the  part  of  the  carrier. 
We  do  not  mean  all  the  care  and  diligence  the  human  mind  can  conceive 
of,  nor  such  as  will  render  the  transportation  free  from  any  possible 
peril,  nor  such  as  would  drive  the  carrier  from  his  business. 

"  It  does  not,  for  instance,  require  steel  rails  and  iron  or  granite  cross- 
ties,  because  such  ties  are  less  liable  to  decay,  and  hence  safer  than  those 
of  wood;  nor,  upon  freight  trains,  air  brakes,  bell  pulls,  and  a  brakeman 
upon  every  car;  but  it  does  emphatically  require  everything  necessary  to 
the  security  of  the  passenger  upon  either,  and  reasonably  consistent  with 
the  business  of  the  carrier,  and  the  means  of  conveyance  employed." 

s.  p.,  Louisville  &  Nashville  R.  R.  Co.  v.  Oden,  80  Ala.  38  (1885).  A 
shipper  can  only  demand  "  suitable,  safe,  and  sufficient  "  cars  and  equip- 
ment, not  the  ''best  and  most  improved  in  use."  Illinois  Cen.  R.  R. 
Co.  V.  Haynes,  63  Miss.  485  (1886). 

So  where  canvass  and  matting  were  ordinarily  used  indifferently  as 
a  packing,  the  canvass  being  the  best,  if  the  carrier  use  matting  he  does 
so  at  his  peril,  and  is  liable  if  injury  is  caused  by  its  insufificiency.  He 
is  bound  to  use  the  best  ordinary  means.  Hill  v.  Mackill,  36  Fed.  Rep. 
702  (1888). 

The  rule  stated  in  Weston  v.  N.  Y.  Elevated  R.  R.  Co.,  73  N.  Y.  595 
(1878),  that  "the  defendant  is  not  bound  to  keep  its  platform  in  such  con 
diiion  that  it  is  impossible  for  passenger  to  slip,  but  in  such  a  condition 
that  person  using  ordinary  care  which  people  use  when  not  apprised  of 


8o  THE    MODERN    LAW   OF    CARRIERS. 

riers  or  not,  have  claimed  a  defense  under  the  rule  that  an 
employer  is  not  liable  to  one  workman  for  injuries  sus- 
tained by  the  negligence  of  a  fellow  workman. 

It  does  not  fall  within  the  scope  of  this  work  to  give  a 
detailed  analysis  of  these  cases.  But  the  principle  which 
underlines  them  all  is  this — An  employer  owes  a  duty  to 
his  employe  to  furnish  safe  appliances  for  the  work  he  is- 
engaged  to  do.  The  omission  of  this  duty  is  negligence. 
Whether  the  employer  undertakes  to  discharge  it  in  person 
or  deputes  it  to  some  one  else,  is  immaterial  so  far  as  his 
common  law  liability  is  concerned.  In  either  case,  the 
omission  is  the  employer's  personal  negligence,  and  he 
is  liable  for  all  damages  resulting  from  it.^ 

danger,"  was  approved,  but  said  to  be  too  stringent  for  the  case  before 
the  court  where  the  carrier  had  not  had  reasonable  opportunity  to  remove 
sleet  which  had  formed  on  the  steps  of  the  car.  Palmer  v.  Penn.  R.  R. 
Co.,  Ill  N.  Y.  488  (1888);  reversing  s.  c  4  N.  Y.  State  Rep.  888- 
(1886). 

So,  it  being  conceded  that  there  is  an  implied  warranty  of  the  carrier 
by  water  that  his  vessel  is  seaworthy,  it  was  said  in  Bell  v.  Read,  4  Binn_ 
(Penn.)  127  (1810),  that  a  vessel  need  only  be  fit  for  the  service  she 
undertakes. 

The  rule  stated  in  the  text  was  extended  to  cars  on  a  train  provided 
by  an  independent  car  company,  and  for  using  which  an  extra  fare  wa.s- 
charged,  and  it  was  held  that  for  a  defect  in  such  a  car  the  carrier  was- 
liable.     Penn.  Co.  v.  Roy.  102  U.  S.  451  (1880). 

^  Laning  v.  N.  Y.  C.  R.  R.  Co.,  49  N.  Y.  521  (1872);  Chapman  v. 
Erie  R.  R.,  ist  Thomps.  &  Cook  (N.  Y.),  529  (1873);  DeGraff  v.  N.  Y. 
C.  &  H.  R.  R.  R.,  3  Thomps.  &  Cook  (N.Y.),  255  (1874);  Siger  j;.  Syracuse,. 
B.  &  N.  Y.  R.  R.  Co.,  7  Lans.  (N.  Y.)  67  (1872);  Baulec  v.  N.  Y.  & 
Harlem  R.  R.,  59  N.  Y.  356  (1874);  Randolph  v.  Bost.  &  Albany  R.  R., 
5  Weekly  Digest,  150  (1877);  Booth  v.  The  Same,  73  N.  Y.  38  (1878); 
Stevenson  v.  Jewett,  16  Hun  (N.  Y.),  210  (1878);  Eagen  7\  Tucker,  18. 
Ibid,  347  (1879);  Harvey  v.  N.  Y.  C.  &  H.  R.  R.  R.,  19  Ibid,  556  (1880); 
Jones  V.  The  Same,  22  Ibid,  284  (1880);  Painton  ?'.  Northern  Central  R. 
R.  Co.,  83  N.  Y.  7  (1880);  Fuller  v.  Jewett,  80  N.  Y.  46  (1880);  Kain 
V.  Smith,  80  N.  Y.  458  (1880);  same  case,  89  N.  Y.  375  (1882).  In  Ellis 
V.  N.  Y.,  Lake  Erie  &  W.  R.  R.,  95  N.  Y.  546  (1884),  it  was  held  that  if 
the  cause  of  the  accident  was  partly  the  omission  of  the  carrier  to  pro- 
vide suitable  appliances  (in  this  case  a  buffer)  and  partly  the  negligence  of 
the  co-servant,  the  company  is  still  liable.  Huntingdon  &  Broad  Top  R.  R. 
Co.  V.  Decker,  84  Penn.  St.  419  (1877);  Baker  v.  Alleghany  Valley  R. 
R.  Co.,95/W,  211  (1880);  Cayzerz;.  Taylor,  10  Gray  (Mass.),  274(1857); 
Paulmier,  Adm'r  7'.  Erie  R.  R.,  5  Vroom  (N.  J.),  151  (1870);  Coombs  v. 


DEFECTIVE   EQUIPMENT.  Si 

For  this  reg-son  the  rule  stated  in  the  beginning  of  this 
chapter  must  be  considered  as  resting  on  a  solid  founda- 
tion of  principle.  And  it  is  analogous  to  that  of  the  law- 
merchant,  adopted  by  the  United  States,  that  the  carrier's 
right  to  discharge  himself  from  liability  by  abandoning 
his  interest  in  ship  and  freight  does  not  extend  to  cases 
where  the  loss  is  caused  by  his  privity  or  personal  negli- 
gence. 

Cases  have  occurred  in  which  the  carrier  provided 
suitable  means  of  transportation,  but  his  servants  negli- 
gently omitted  to  use  these  and  employed  others  which 
were  unsuitable  for  the  use  of  the  particular  kind  of  freight 
to  be  transported  ;  as,  for  example,  using  a  grain  and  lum- 
ber car,  the  door  of  which  was  insecure,  for  the  transpor- 
tation of  live  stock.  The  contract  provided  that  the  car- 
rier should  not  be  liable  for  the  negligence  of  his  servants, 
and  the  validity  of  the  exemption  was  sustained.^ 

Whether  the  distinction  taken  in  this  case  will  be  ap- 
proved in  other  States,  does  not  yet  appear.  But  the 
general  rule  stated  at  the  beginning  of  this  section  is 
established  not  only  in  those  States  in  which  no  contracts 
of  exemption  from  negligence  are  held  to  be  valid,  but  in 
other  States,  and  it  is  sustained  by  the  weight  of  authority 


New  Bedford  Cordage  Co.,  102  Mass  572  (1869);  Ford  v.  Fitchburg  R. 
R.  no  Ibid,  240  (1872);  Holden  v.  The  Same,  izg  Ibid,  268(1880); 
O'Connor  v.  Adams,  120  Ibid,  427  (1876);  Chicago  &  N.  W.  R.  R.  Co. 
V.  Swett,  45  111.  197  (1867);  Camp  Point  Mfg.  Co.?'.  Ballon,  71  Ibid,  417 
(1874);  T.  W.  &  W.  R'y  Co.  V.  Fredericks,  Ibid,  294  (1874);  Fairbank  v. 
Haentzche,  73  Ibid,  236  (1874);  Chicago  &  Great  Eastern  R.  Co.  v. 
Harney,  28  Ind.  28  (1867).  The  soundness  of  the  distinction  stated  in 
text  is  denied  in  Illinois  Central  R.  R.  Co.  v.  Read,  37  111.  484  (1865), 
and  Gulf,  C  &  S.  F.  R.  Co.  v.  McGown,  65  Texas,  640  {1886),  in  both 
of  which  cases  it  was  held  that  there  was  no  distinction  in  the  grade  of 
corporate  agents  so  far  as  the  liability  of  the  corporation  was  concerned, 
and  that  however  subordinate  the  agent,  his  negligence  was  that  of  the 
corporation  itself.  Stipulations  for  exemption  from  liability  therefore 
were  held  invalid. 

^  Wilson  V.  N.  Y.  C.  &  H.  R.  R.  R.,  97  N.  Y.  87  (1884). 
6 


82  THE   MODERN   LAW   OF   CARRIERS. 

in  England,  where  the  validity  of  such  contracts  generally 
is  upheld.^ 

SECTION    II. 

LAWFULNESS   OF   CONTRACT   FOR   EXEMPTION   FROM    LL\BILITY 
FOR  NEGLIGENCE  OF  THE  CARRIER'S  SERVANTS. 

Let  US  now  assume  that  the  carrier  has  in  all  respects 
fulfilled  the  obligation  thus  devolved  upon  him.  His 
ship,  we  will  say,  is  constructed  by  skillful  builders.  She 
has  every  security  against  danger  that  experience  has  ap- 
proved. Her  of&cers  and  crew  are  men  of  skill,  trusty 
and  experienced.  This  certainly  is  all  the  carrier  can  do. 
Why,  then,  may  he  not  lawfully  stipulate  by  express  con- 
tract that  if  these  agents,  in  whose  selection  he  has  used 
diligence  and  prudence,  beti^ay  their  trust,  and  are  care- 
less or  wicked,  the  carrier  should  not  be  liable  ? 

Yet  in  a  majority  of  the  States  of  this  Union  such  a 
contract  of  exemption  is  held  to  be  against  public  policy, 
and  therefore  void.  This  is  the  rule  in  all  the  Federal 
Courts.^ 


1  Tattersall  v.  The  National  S.  S.  Co.,  Limited,  L.  R.  12  Q.  B.  D.  297 
(1884).  This  was  a  shipment  of  cattle  under  a  bill  of  lading  containing 
the  following  clause:  "These  animals  being  in  sole  charge  of  shippers' 
servants,  it  is  hereby  expressly  agreed  that  the  ship  owners,  or  their  agents 
or  servants,  are,  as  respects  these  animals,  in  no  way  responsible,  either 
fur  their  escape  from  the  steamer  or  for  accident,  disease  or  mortality, 
and  that  under  no  circumstances  shall  they  be  held  liable  for  more  than 
;^5  for  each  of  the  animals."  The  ship  had  previously  carried  diseased 
cattle  and  the  loss  arose  from  contagion  communicated  in  consequence 
of  her  having  been  insufficiently  cleaned.  Held  that  the  defendant  was 
liable  notwithstanding  the  exception  in  the  bill  of  lading  because  the 
ship  was  not  reasonably  fit  for  the  carriage  of  the  cattle. 

The  question  as  the  evidence  from  which  a  jury  may  properly  infer 
defective  construction  of  an  engine  is  considered  in  Tanner  v.  N.  Y. 
Cent.  &  H.  R.  R.  R.  Co.,  108  N.  Y.  623;  s.  c.  15  North  East.  Rep.  379 
(1888). 

2  New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank,  6  How. 
(U.  S.)  344  (1848);  Phila.  &  Reading  R.  R.  Co.  v.  Derby,  14  Ibid,  468 
(1852);  Steamboat  "New  World"  et  al.  v.  King,  16  Ibid,  469  (1853); 
York  Company  v.  Central  Railroad,  3  Wall.  107  (1865);   Walker  v.  The 


NEGLIGENCE  OF  CARRIER'S  SERVANTS.  83 

The  rule  is  the  same  in  many  of  the  State  Courts.* 

Transportation  Company,  Ibid,  150  (1865);  Express  Co.  v.  Kountze 
Bros.,  8  Ibid,  342  (1869);  Railroad  Company  v.  Lockwood,  17  Ibid,  357 
(1873);  Bank  of  Kentucky  v.  Adams  Ex.  Co.,  93  U.  S.  174  (1876). 
In  the  last  case  a  stipulation  that  the  express  company  was  not  to  be  li- 
able for  loss  by  fire,  did  not  exempt  the  company  from  liability  for 
damage  by  fire  caused  by  the  negligence  of  the  servants  of  the  railroad 
which  had  contracted  with  the  express  company  to  transport  the  goods. 
The  court  held  the  stipulation  to  be  invalid  on  the  ground  that  it  was 
against  public  policy  to  sustain  any  exemptions  from  liability  for  negli- 
gence, under  any  circunistances.  The  Montana,  129  U.  S.  397  (1889); 
affg.  s.  c.  22  Blatchf.  372  (1884);  17  Fed.  Rep.  377  (1883);  reported  in 
Supreme  Court,  sub  nam.  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins. 
Co.;  Inman  v.  South  Carolina  R.  Co.,  129  U.  S.  128  (1889);  The  City 
of  Norwich,  4  Bened.  271  (1870);  Rintoul  z;.  N.  Y.  Central  &  H.  R.  R.  R., 
17  Fed.  Rep.  905  (1883);  Earnest  v.  Express  Co.,  i  Woods,  573  (1873). 

But  these  courts  permit  a  carrier  to  insure  against  the  negligence  of 
his  servants,  and  also  hold  valid  a  contract  with  the  shipper  that  the 
carrier  shall  have  the  benefit  of  the  insurance.  Phoenix  Ins.  Co.  v.  Erie 
Trans.  Co.,  117  U.  S.  312,  324  (1885). 

^  Alabama. — Cent.  R.  R.  &  Banking  Co.  v.  Smitha,  85  Ala.  47;  s.  c 
4  So.  Rep.  708  (1888);  Steele  v.  Townsend,  37  Ala.  247;  s.  c.  i  Ala.  Sel. 
Ca.  201  (1861);  Louisville  &  Nashville  R.  R.  Co.  v.  Oden,  80  Ala.  38 
(1885);  Southern  Express  Co.  v.  Crook,  44  Ala.  468  (1870);  South  & 
N.  Ala.  R.  R.  Co.  v.  Henlein,  52  Ala.  606  (1875);  Ala.  G.  S.  R.  R.  Co.  v. 
Little,  71  Ala.  611;  s.  c  2  Ala.  Law  Journal,  141  (1882);  Alabama  G. 
S.  R.  R.  Co.  V-  Thomas,  83  Ala.  343;  s.  c.  3  So.  Rep.  802  (1888). 

Arkansas.—Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Talbot,  39  Ark.  523 
(1882). 

California. — In  this  State  it  was  held  that  an  express  company  was 
liable  for  the  negligence  of  the  employes  on  a  steamboat  not  belonging 
to  nor  managed  by  the  express  company,  but  which  transported  goods 
for  it,  although  the  contract  with  the  shipper  stipulated  that  the  express 
corflpany  should  not  be  liable  "except  as  forwarder."  Hooper  z;.  VVells. 
27  Cal.  II  (1864). 

Delaware.— Flinn  v.  Phila.,  Wil.  &  Bait.  R.  R.  Co.,  i  Houst.  469 
(1857). 

Georgia. — Berry,  ct  al.  v.  Cooper  &  Boykin  Exrs.,  28  Ga.  543  (1859); 
Georgia  R.  R.  v.  Gann,  68  Geo.  350  (1882). 

Illinois. — Boscowitz  v.  Adams  Ex.  Co.,  93  111.  523  (1879).  But  see 
111.  Cent.  R.  R,  Co.  v.  Jonte,  13  Bradwell,  424  (111.  App.  1883),  and 
cases  cited;  and  see  note  i,  p.  86,  post. 

Indiana. — Evansville  &  C.  R.  R.  Co.  v.  Young,  28  Ind.  516  (1867); 
Michigan  S.  &  Northern  Indiana  R.  R.  Qo.v.  Heaton,  37  /^^/V/,  448  (187 1); 
Adams  Express  Co.  v.  Fendrick,  38  Ibid,  150  (1871);  Indianapolis,  P.  & 
C.  R.  R.  V.  Allen,  31  Ibid,  394  (1869);  Mich.  S.  &  N.  I.  R.  R.  v.  Heaton, 
Ibid,  ^g-j,  note  (1869);  Ohio  &  Miss.  R.  R.  7j.  Selby,  47  Ibid,  471  (1874). 
These  cases  overrule  the  earlier  decisions  in  that  State.  Wright  v. 
Gaff,  ef  al.,  6  Ind.  416  (1855);  Indiana  Central  R.  R.  v.  Mundy,  21  Ibid, 
48  (1863).     The  last  was  a  case  of  a  passenger  traveling  on  a  free  pass, 


84  THE    MODERN   LAW   OF    CARRIERS. 

lu  analogy  to  the  rule  thus  stated,  it  is  held  in  some 
States  that  a  carrier  cannot  lawfully  stipulate  with  its 

who  had  contracted  that  the  carrier  should  not  be  liable  for  injuries 
caused  by  the  negligence  of  its  servants.  Held,  that  such  agreement 
did  not  cast  upon  such  passenger  any  risks  arising  from  the  gross,  or 
from  any,  negligence  of  the  servants  of  the  company.  Thayer  v.  St. 
Louis,  Alton  &  Terre  Haute  R.  R.,  22  Ibid,  26  (1864). 

Kansas. — St.  Louis,  K.  C.  &  N.  R.  Co.  v.  Piper,  13  Kans.  505  (1874); 
Kallman  v.  U.  S.  Ex.  Co.,  3  Ibid,  205  (1865). 

Kentucky. — Louisville  &  Nashville  R.  R.  Co.  v.  Brownlee,  14  Bush, 
590  (1879);  Orndorff  v.  Adams  Express  Co.,  3  Bush,  194(1867);  Reno 
V.  Hogan,  12  B.  Monr.  63  (185 1). 

Louisiana.— N.  O.  Mut.  Ins.  Co.  v.  N.  O.,  Jackson  &  G.  N.  R.  R. 
Co.,  20  La.  Ann.  304  (1868).     But  see  note  i,post,  p.  86. 

Maine. — Sager  v.  Portsmouth,  S.  &  P.  &  E.  R.  R.  Co.,  31  Me.  22S 
(1850). 

Massachusetts. — School  Dist.  v.  Boston,  Hartford  &  Erie  R.  R.  Co., 
102  Mass.  552  (1869);  Lewis  v.  N.  Y.  S.  C.  Co.,  143  Mass.  267  (1887). 
In  this  case  there  was  a  sign  that  sleeping-car  company  would  not  be 
liable,  but  the  court  said,  as  plaintiff  did  not  see  it,  defendant  could  not 
take  advantage  of  it.  But  see  Hill  v.  Boston,  Hoosac  Tunnel  &  W.  R. 
R.  Co.,  144  Mass.  284  (1887),  where  a  stipulation  as  to  value  was  held 
good- in  spite  of  negligence  of  the  carrier. 

Minnesota. — Shriver  v.  Sioux  City  «S:  S.  P.  R.  R.  Co.,  24  Minn.  506 
(1878);  Christenson  v.  Am.  Ex.  Co..  15  Minn.  270  (1870). 

Mississippi. — Whitesides  v.  Thurlkill,  20  Miss.  599  (1849);  Southern 
Express  Co.  v.  Moon,  39  Miss.  822  (1863). 

Missouri. — Levermg  et  al.  v.  Union  Transp.  &  Ins.  Co.,  42  Mo.  8S 
(1867);  Snider  v.  Adams  Ex.  Co.,  63  Mo.  376  (1876);  Lupe  v.  Atlantic 
&  P.  R.  R.,  3  Mo.  App.  77  (1876);  Kirby  v.  Adams  Ex.  Co.,  2  Mo.  App. 
369  (1876);  Dawson  v.  Chicago  &  A.  R.  R.,  79  Mo.  296  (1883);  Carroll 
V.  Mo.  Pacific  Ry.  Co.,  88  Mo.  239  (1885). 

Nebraska. — The  Constitution  of  Nebraska  (1875)  provides  that 
"The  liability  of  railroad  corporations  as  common  carriers  shall  never 
be  limited."  A  railroad  company  which  operates  a  line  of  railroad  in 
that  State,  although  not  incorporated  under  its  laws,  is  subject  to  this 
restriction,  and  cannot  make  a  valid  agreement  to  limit  its  liability. 
Missouri  Pac.  R.  R.  v.  Vandeventer,  3  Law.  Rep.  Ann.  129;  s.  c  41 
N.  W.  Rep.  998  (1889). 

North  Carolina. — A  clause  in  a  receipt  permitting  carrier  to  trans- 
port at  his  own  convenience  does  not  exempt  him  from  liability  for  un- 
reasonable detention  of  the  goods;  it  is  against  public  policy  and  the 
statute.     Branch  v.  Wilmington  &  W.  R.  R.  Co.,  88  N.  C  573  (1883). 

Ohio. — Jones  v.  Voorhees,  10  Ohio,  145  (1840);  Davidson  v.  Gra- 
ham, 2  Ohio  St.  131  (1853);  Graham  &  Co.  v.  Davis  &  Co.,  4  Ibid, 
362  (1854);  Wilson  V.  Hamilton,  Ibid,  722  (1855);  Welsh  v.  P.,  Ft.  W. 
&  C.  R  R.  Co.,  10  Ibid,  65  (1859);  Cleveland.  P.  &  A.  R.  R.  Co.  v. 
Curran,  19  Ibid,  i  (1869);  C,  H.  &  D.  &  D.  &  M.  R.  R.  Co.  v.  Pontius, 
Ibid,  221  (1869);  Knowlton  v.  Erie  R.  Co.,  Ibid,  260  (1869). 


NEGUGENCE  OF  CARRIER'S   SERVANTS.  85 

'employees,  at  the  time  and  as  part  of  their  contract  of 
employment,  that  the  carrier  shall  not  be  liable  for  in- 
juries caused  to  them  b}^  the  carelessness  of  other  em- 
ployees.^ 

Oregon. — Seller  v.  The  Pacific,  i  Oreg.  409  (1861). 

Pennsylvania. — Laing  v.  Colder,  8  Penn.  479  (1848);  Camden  v. 
Amboy  R.  P.  Co.  v.  Baldauf,  16  Ibid,  67  (1851);  Penn.  R.  Co.  v.  Mc- 
Closkey,  23  Jbid,  526  {1854);  Goldey  v.  Penn.  R.  R.  Co.,  30  Ibid,  242 
(1858);  Powell  V.  Penn.  R.  R.  Co.,  32  Ibid,  414  (1859);  Penn.  R.  R.  Co. 
V.  Henderson,  51  Ibid,  315  (1865);  Farnham  v.  Camden  &  Amboy  R. 
R.  Co.,  55  Ibid,  53  (1867);  American  Express  Co.  v.  Sands,  Ibid,  140 
(1867);  Penn.  R.  R.  Co-  v.  Butler,  57  lb.  335  (1868);  Empire  Transp. 
Co.  V.  Wamsutta  Oil  Refining  and  Mining  Co.,  63  Ibid,  14  (1869);  Gro- 
gan  V.  Adams  Ex.  Co.,  114  Ibid,  523  (1886). 

Texas.— Mo.  P.  Ry.  Co.  v.  Cornwall,  8  S.  W.  Rep.  312  (1888);  Mis- 
souri Pac.  R.  Co.  V.  Harris,  67  Texas,  166  (1886).  In  this  case  the  tort 
was  not  willful.  Houston  &  T.  C.  R.  R.  v.  Burke,  55  Texas,  323 
(1881);  Gulf,  C.  &  S.  F.  R.  R.  Co.  V.  McGown,  65  Texas,  640  (1886); 
Missouri  Pac.  Ry.  v.  Ivey,  71  Texas,  409  ;  s.  c  9  S.  W.  Rep.  346  (1888). 
In  this  case  it  was  held  that  the  carrier  could  not  lawfully  demand  a 
waiver  of  any  of  the  common-law  rights  of  the  shipper,  as  a  condition 
precedent  to  receiving  goods  for  transportation.  Missouri  Pac.  R.  Co. 
V.  Fagan,  9  S.  W.Rep.  749  (1888). 

Tennessee. — Merchants'  Dispatch  T.  Co.  v.  Bloch,  86  Tenn.  392 
<i888). 

Virginia.— Va.  &  Tenn.  B.  R.  z^.  Sayers,  26  Graft.  328  (1875). 

Wisconsin. — Carrier  may  exempt  himself  for  liability  where  the  car- 
riage is  absolutely  gratuitous,  but  not  if  there  is  a  partial  consideration, 
or  gross  negligence.  Annas  v.  Milwaukee  &  Northern  R.  Co.,  67  Wis- 
consin, 46  (1886). 

1  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Spangler,  44  Ohio  St.  471 ;  s.  c 
34  Alb.  L.  J.  423  (1886);  Roesner  v.  Hermann,  8  Fed.  Rep.  782  (1881). 

The  ground  of  the  Ohio  decision  was  that  public  policy  demanded 
that  a  common  carrier  should  not  exempt  itself  from  liability  for  in- 
juries to  its  servants  caused  by  carelessness  of  those  who  are  superior 
in  authority  over  them. 

Western  &  A.  R.  R.  Co.  v.  Bishop,  50  Ga.  465  (1873),  was  cited  in 
the  Ohio  case  in  support  of  the  validity  of  the  contract.  It  was  there 
held  that  such  a  contract,  so  far  as  it  does  not  waive  any  neglect  of  the 
company  or  its  principal  officers,  is  a  legal  contract,  and  binding  upon 
the  employee.  But  the  court  add:  "We  do  not  say  that  the  employer 
and  employee  may  make  any  contract — we  simply  insist  that  they  stand 
on  the  same  footing  as  other  people.  No  man  may  contract  contrary  to 
law,  or  contrary  to  public  policy  or  good  morals,  and  that  is  just  as  true 
of  merchants,  lawyers  and  doctors,  of  buyers  and  sellers,  and  bailors  and 
bailees,  as  of  employers  and  employees." 

In  State  v.  Baltimore  &  O.  R.Co.,  ^d  Fed.  Rep.  655  (1888),  a  clause 
in  the  constitution  of  a  relief  association,  which  required  a  person  ac- 


S6  THE   MODERN    LAW   OF   CARRIERS. 

On  tlie  other  hand  the  English  courts,  and  those  of 
many  States  in  the  Union,  recognize  the  validity  of  stipu- 
lations limiting  the  liability  of  carriers  for  the  negligence 
of  their  servants,  and  enforce  the  contracts  containing 
them.^ 


cepting  the  benefit  of  its  funds  to  release  a  railroad  company  from  any 
claim  for  damages  caused  by  its  negligence,  was  valid.  To  the  same 
effect  are  Fuller  v.  Bait.  &  Ohio  Employes'  Relief  Association,  67  Md. 
433  (1887);  Owens  V  Bait.  &  O.  R.  R.  Co.,  35  Fed.  Rep.  715  (1888). 

In  Mo.  P.  Ry.  Co.  v.  Mackey,  127  U.  S.  205  (1888),  it  was  held 
that  a  statute  rendering  a  railroad  company  liable  to  its  employees,  for 
the  negligence  of  any  of  its  agents,  engineers,  etc.,  was  constitutional, 
s.  P.,  Minneapolis  &  St.  L.  Ry.  Co.  v.  Herrick,  127  U.  S.  210  (1888). 

An  attempt,  by  contract,  to  make  a  cattle-guard  employed  by  owner 
an  employee  of  the  carrier,  so  as  to  exempt  the  latter  from  liability  to 
him,  was  held  invalid  in  Missouri  P.  Ry.  Co.  v.  Ivey,  7 1  Texas,  409; 
s.  c.  9  S.  W.  Rep.  346  (1888). 

1  The  Duero,  L.  R.  2  Adm.  &  Ec  393  (1869);  Taubman  v.  Pacific 
S.  N.  Co.,  26  Law  Times  (N.  S.),  704  (1872);  Steele  ?'.  State  Line  S.  S. 
Co.,  3  App.  Ca.  72  (1877);  Manchester,  S.  &  L.  Railway  v.  Brown,  8 
App.  Ca.  703  (1883);  In  re  Missouri  S.  S.  Co,  58  Law  Times  (N.  S.), 
377  (1888);  affd.  Ct.  Appeals,  Weekly  Notes,  Notes  of  Cases,  May  11, 
1889,  p.  90;  Peek  V.  North  Staffordshire  Railway  Co.,  10  House  of  Lords 
Cases,  473  (1863).  The  English  cases  are  fully  stated  in  the  opinion  of 
Blackburn,  p.  491,  et  seq.  Carr  v.  Lancashire  &  York.  R.  Co.,  7  Excheq. 
707(1852);  Dodson  7'.  Grand  Trunk  R.  Co.,  2   Nova  Scotia  Dec.  405 

(1871)-  .  . 

Among  the  earlier  English  cases,  see  especiallv  Hmton  v.  Dibbm, 
2  Q.  B.  646  (1842),  and  Wyld  v.  Pickford,  8  Mees.  &  Welsh.  443  (1841). 

Connecticut. — Hale  v.  N.  J.  Steam  Navig.  Co.,  15  Conn.  539  (1843); 
Lawrence  v.  N.  Y.,  Providence  &  Boston  R.  R.  Co.,  36  Conn.  63 
(1869). 

Illinois.— Illinois  Central  R.  R.  Co.  v.  Morrison,  19  111.  136  (1857). 
In  this  case  it  was  held  that  a  carrier  could  limit  his  liability  for  the 
negligence  of  his  agents,  but  not  for  their  gross  negligence.  This  is 
cited,  with  approval,  in  Illinois  Central  R.  R.  Co.  v.  Adams,  42  111.  474 
(1867).     Note  I,  p.  83,  ante. 

Louisiana. — Higgins  v.  N.  O.,  M.  &  C.  R.  R.  Co.,  28  La.  Ann.  133 
(1876).  In  this  case,  also,  it  is  said  that  if  the  injury  was  occasioned 
"by  the  fraudulent,  willful  or  reckless  conduct  of  the  agent,"  an  agree- 
ment for  exemption  would  be  unlawful.     See  note  i,  p.  82,  ante. 

Maryland.— Bait.  &  Ohio  R.  R.  Co.  v.  Brady,  32  Md.  333  (1869). 

Michigan. — Hawkins  v.  Great  Western  R.  R.,  17  Mich.  57  (1868); 
same  case  affirmed,  18  Ibid,  427  (1869). 

New  York.— Wells  v.  N.  Y.  Central  R.  R.  Co.,  24  N.  Y.  181  (1862); 
affg.  s.  c.  26  Barb.  641  (1858);  Perkins  v.  The  Same,  IbiJy  196  (1862); 
Smith  V.  The  Same,  Ibid,  222  (1862);  Bissell  v.  N.  Y.  Central  R.  R.  Co., 
25  Ibid^  442  (1862).     In  this  case  the  passenger  who  was  injured  (a 


NEGLIGENGE   OF   CARRIER'S   SERVANTS.  87 

The  question  as  to  the  carrier's  right  to  contract  for 
exemption  from  liability  for  the  negligence  of  his  servants, 
is  complicated  in  the  earlier  cases  by  a  discussion  as  to 
the  consideration  paid  by  the  passenger  for  his  carriage. 
There  is  a  class  of  cases  where  a  passenger  traveling  on 
a  free  ticket,  having  paid  no  fare  whatever,  has  received 
injury,  and  where  the  ticket  contained  a  printed  form 
called  an  agreement,  to  the  effect  that  the  company  should 


cattle  drover)  was  transported  at  a  reduced  rate  of  fare.  This  was  the 
consideration  for  the  agreement  that  the  carrier  should  not  be  liable  for 
negligence.     This  was  held  sufficient.     See  posf,  ch.  IV,  sect.  4. 

Poacher  v.  N.  Y.  Central  R.  R.  Co.,  49  N.  Y.  263  (1872).  This  also 
was  a  case  of  personal  injuries  to  a  drover  accompanying  cattle  trans- 
ported by  the  carrier.  Cragin  v.  N.  Y  Central  R.  R.  Co.,  51  N.Y.  61 
(1872);  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880);  revg.  s.  c.  14  Hun, 
100  (1878);  Parsons  v.  Monteath,  13  Barb.  353  (1851);  Moore  v.  Evans, 
14  Ih'd,^24  (1852);  Heinman  v.  Grand  Trunk  R.  R.  Co.,  i  Buffalo  Su- 
perior Ct.  Rep.  95  (1866). 

The  Supreme  Court  of  New  York  has  gone  so  far,  in  sustaining  the 
validity  of  such  stipulations,  as  to  enjoin  one  citizen  of  New  York  from 
suing  another  upon  a  contract  made  with  a  carrier,  to  recover  damages 
for  injuries  caused  by  the  negligence  of  the  carrier's  servants,  in  the 
courts  of  a  State  where  clauses  of  exemption  from  liability  for  injuries 
so  caused  are  held  to  be  unlawful.  Dinsmore  z^.  Neresheimer,  32  Hun, 
204  (1884). 

These  cases  overrule  the  earlier  decisions  in  New  York.  Cole  v. 
Goodwin,  19  Wend.  251  (1838);  Gould  v.  Hill,  2  Hill,  623  (1842);  Dorr 
V.  N.  J.  Steam  Nav.  Co.,  4  Sandford  Superior  Ct.  Rep.  136  (1850);  Stod- 
dard V.  The  Long  Island  R.  R.  Co.,  5  /d/d,  180  (185 1);  Bissell  v.  N.  Y. 
Central  R.  R.,  29  Barb.  602  (1859);  see  Stedman  v.  Western  Trans.  Co., 
48  Barb.  97  (1866). 

But  the  contract  against  negligence  must  be  express;  mere  general 
expressions  will  not  answer.  Canfield  v.  B.  &  O.  R.  R.  Co.,  93  N.  Y. 
532  (1883).     See  post,  ch.  X,  sect.  3. 

New  Jersey. — Ashmore  v.  Penn.  Steam  Towing  &  Transportation  Co., 
4  Dutcher,  180  (i860);  Kinney  z^.  Central  R.  R.,  32  N.  J.  Law  (3  Vroom.), 
407  (1868);  affd.  34  N.  J.  Law,  514  (1870).  This  was  a  case  of  a  pas- 
senger traveling  on  a  free  pass,  who  had  contracted  that  the  carrier 
should  not  be  liable  for  injuries  caused  by  the  negligence  of  its  ser- 
vants. 

Vermont.— Kimball  v.  Rut.  &  Burl.  R.  R.  Co.,  26  Vt.  247  (1854); 
Mann,  et  al.  v.  Birchard,  ct  al.,  40  Ibid,  326  (1867). 

Western  Virginia. — Baltimore  &  Ohio  R.  R.  v.  Rathbone,  i  W.  Va. 
87  (1865).  In  this  case  it  is  said  that  the  exemption  will  not  be  ex- 
tended to  a  loss  occasioned  by  the  malfeasance  or  fraud  of  the  car- 
rier's servants. 


88  THE    MODERN    LAW    OF   CARRIERS. 

not  be  liable  for  auy  injury  or  loss  to  the  passenger,  whetlier 
arising  from  negligence  of  its  serv^ants  or  otberwise.  In 
these  cases  the  courts  in  some  of  the  States  have  held 
that  the  contract  was  a  legal  one,  and  that  no  degree  of 
negligence  on  the  part  of  the  carrier's  agents  could  make 
the  carrier  liable  for  injury  to  the  person  traveling  on 
such  a  free  ticket/ 


1  Wells  V.  N.  Y.  C.  R.  R.  Co.,  24  N.  Y.  181  (1862);  affirming  s.  c.  26 
Barb.  641  (1858);  Perkins  v.  N.  Y.  C  R.  R.  Co.,  24  N.  Y.  196  (1862); 
Boswell  V.  H.  R.  R.  R.  Co.,  5  Bosw.  (N.  Y.)  699  (i860).  In  the  latter  case, 
the  passenger  injured  had  charge  of  cattle,  which  were  being  transported 
on  the  railroad,  and  received  a  pass  from  the  carrier,  which  contained  a 
stipulation  that  by  accepting  or  using  it  he  expressly  released  the  com- 
pany in  consideration  of  this  pass,  and  the  reduction  of  the  freight  below 
tariff  rates,  from  all  liability  for  injury  to  said  stock  or  for  injury  to  his 
person  or  stock  from  any  cause  whatever.  The  court  hrld  that  under 
such  contract  the  carrier  was  not  liable  for  an  injury  to  the  drover.  In 
this  case,  however,  the  injury  occurred  without  willful  fault  or  gross  neg- 
ligence on  the  part  of  the  carrier's  agents.  On  the  other  hand,  it  can 
hardly  be  said  that  a  person  who  travels  upon  such  a  ticket  as  that  pays 
no  consideration  whatever  for  his  carriage.  None,  it  is  true,  is  specifi- 
cally paid,  but  the  carriage  of  himself  as  well  as  of  the  live-stock  which 
he  accompanies  is  paid  for  by  the  price  which  is  paid  in  gross.  If  there 
be  anything  in  the  distmction  which  some  courts  have  attempted,  be- 
tween cases  where  no  consideration  whatever  is  paid  for  transportation, 
and  cases  where  some  consideration  is  paid,  the  Boswell  case  should  be 
included  in  the  latter  class.  See,  also,  Ohio  &  Miss.  R.  R.  Co.  v. 
Selby,  47  Ind.  471  (1874);  Pennsylvania  R.  R.  Co.  z'.  Henderson,  51  Pa. 
315  (1865).  In  Myers  v.  Wabash  &  St.  Louis  R.  Co.,  90  Mo.  98 
(1886),  a  reduced  rate  of  freight  was  held  to  be  a  valid  consideration 
for  the  owner's  assuming  part  of  the  risk.  Carroll  v.  Missouri  Pacific 
R.  Co.,  88  Mo.  239  (1885)  was  a  case  of  injury  to  a  drover  traveling 
on  a  pass,  with  stock,  held  that  a  stipulation  for  exemption  from  liability 
was  invalid.  The  same  rule  was  applied  to  the  case  of  a  person  travel- 
ing on  a  free  pass  in  Gulf,  C.  &  S.  F.  R.  R.  v.  McGown,  65  Texas, 
640(1886).     ^te.  post,  ch.  IV,  sect.  4. 

In  another  of  the  free  ticket  cases,  the  court  held  that  a  person 
accepting  such  a  ticket  might  contract  that  the  company  should  not  be 
liable  for  ordinary  negligence,  but  that  a  contract  exempting  from  neg- 
ligence would  not  be  so  construed  as  to  exempt  the  carrier  from  liability 
for  willful  default  or  tort  of  his  servant.  Mobile  &  Ohio  R.  R.  Co.  v- 
Hopkins,  41  Ala.  486  (1868). 

In  R.  R.  Co.  V.  Stevens,  95  U.  S.  655  (1877),  the  United  States  Su- 
preme Court  had  under  consideration  a  question  of  the  carrier's  liability 
tor  damages  to  a  passenger  who  was  traveling  on  a  free  pass  which  con- 
tained a  stipulation  exempting  the  company  from  liability  for  the  negli- 


LIABILITY   OF   EXPRESS   COMPANIES.  89 

Many  of  the  courts  whicli  hold  such  a  stipulation  in- 
valid extend  their  ruling  so  far  as  to  maintain  that  the 
carrier  shall  not  be  permitted  to  stipulate  for  exemption 
from  liability  for  the  negligence  of  another  carrier  employed 
by  it  to  perform  the  work  of  transportation.  It  is  not 
customary  in  the  United  States  for  railroad  companies  to 
undertake  the  transportation  of  small  and  valuable  parcels 
by  their  own  servants.  This  is  commonly  done  by  what 
are  called] 'express  companies.  These  sometimes  furnish 
their  own  cars,  and  sometimes  engage  space  on  the  cars 
of  the  railroad  companies.  In  either  case  it  is  the  rail- 
road company  that  hauls  the  freight,  and  thus  performs 
the  work  of  transportation.  The  parcels  are  commonly 
received  and  delivered  by  the  servants  of  the  express  com- 
pany, and  are  in  their  custody  during  the  transit.  When 
these  express  companies  first  were  charged  as  common 
carriers,  they  sought  to  exempt  themselves  from  liability 
for  the  negligence  of  the  servants  of  the  railroad  companies 
with  which  they  contracted,  by  the  provision  that  the  ex- 
press company  should  be  liable  as  forwarders  only.  This, 
however,  did  not  accomplish  the  purpose  for  which  it  was 


gence  of  its  servants.  It,  however,  appeared  in  this  case  that  though 
the  passenger  paid  no  pecuniary  consideration  for  his  transportation,  he 
was  in  fact  traveling  at  the  request  and  for  the  benefit  of  the  company, 
and  the  court  held  that  under  such  circumstances  the  carrier  was  liable 
for  injuries  to  him,  but  declined  to  say  that  had  he  been  traveling  with- 
out paying  any  consideration  to  the  railroad  company,  such  a  stipulation 
might  not  be  valid. 

111.  Central  R.  R.  Co.  v.  Read,  37  111.  484  (1865)  was  another  free 
ticket  case.  There  was  no  pretence  that  any  consideration  of  any  kind 
was  paid  for  the  ticket,  but  the  carrier  was  held  liable  for  the  gross  neg- 
ligence of  its  servants,  notwithstanding  the  clause  on  the  ticket  purport- 
ing to  exempt  the  carrier  from  liability  for  negligence. 

Where  an  express  messenger  is  allowed  to  ride  on  a  baggage  car  and 
carry  his  goods,  the  privilege  is  a  good  consideration  for  the  exemption 
of  the  carrier  from  liability  for  injuries  to  the  messenger  arising  from 
his  being  in  that  car,  and  the  carrier  is  not  liable  to  him  for  the  negli- 
gence of  its  own  baggage  men.  Bates  v.  Old  Colony  R.  R.  Co.,  147 
Mass.  255;  s.  c.  38  Albany  L.  J.  297  (1888). 


90  THE    MODERN    LAW    OF    CARRIERS. 

intended.  Notwithstanding  such  agreement,  the  express 
company  is  held  to  be  liable  as  carrier,  although  both  it 
and  its  servants  are  free  from  blame.  This  is  contrary  to 
the  rule  of  respondeat  superior,  and  throws  liability  on  a 
carrier  which  would  not  be  imposed  upon  the  owner  of  real 
estate  for  the  negligence  of  his  contractor's  servants.  But 
the  views  of  public  policy  entertained  b}^  the  courts  re- 
ferred to  have  induced  them  to  extend  the  rule  as  far  as  has 
just  been  stated.^ 

In  some  of  the  States  and  in  Great  Britain,  statutes 
have  been  passed  limiting  the  right  of  the  carrier  to  make 
special  contracts  with  a  shipper  or  passenger,  which  exempt 


*  Bank  of  Kentucky  v.  Adams  Ex.  Co.,  93  U.  S.  174  (1876);  Hooper 
V.  Wells,  27  Cal.  11  (1864);  Gait  v.  Adams  Ex.  Co.,  McArthur  & 
Mackey  (D.  C.)  124  (1879);  Langworthy  v.  N.  Y.  &  Harlem  R.  R.,  2 
E.  D.  Smith  (N.  Y.),  195  (1853);  Boscowitz  v.  Adams  Ex.  Co.,  93  111.  523 
(1879);  Merchants'  Dispatch  T.  Co.z^.  Bloch,  86  Tenn.  392  (1888).  See, 
for  an  apparent  exception,  American  Ex.  Co.  v.  Second  National  Bank, 
69  Penn.  394  (1871). 

The  rule  stated  in  the  text  has  been  applied  conversely.  In  Thorpe  v. 
N.  Y.  C.  &  H.  R.  R.  R.  Co.,  13  Hun,  70  (1878),  the  railroad  company  was 
held  liable  for  the  misconduct  of  the  servants  of  a  drawing-room  car 
company,  in  using  unnecessary  violence  in  evicting  a  passenger  who  had 
taken  a  seat  in  the  drawing-room  car  without  paying  extra  fare,  he  hav- 
ing been  unable  to  procure  a  seat  in  the  ordinary  cars.  This  decision 
was,  however,  clearly  right,  irrespective  of  any  question  of  public  policy. 
It  is  well  settled  that  a  carrier  owes  a  duty  to  passengers  contracting  with 
it,  to  protect  them  from  unlawful  violence  or  ill  treatment  while  on 
its  vehicles.  Putnam  v.  Broadway  &  Seventh  Av.  R.  R.,  55  N.  Y.  108 
(1873);  Williams  £'.  Pullman  Car  Co.,  40  La.  Ann.  417;  s.  c.  4  So.  Rep. 
85  (1888).  In  the  same  case  (40  La.  Ann.  87;  3  So.  Rep.  631  [1888]), 
it  was  held  that  the  Pullman  Car  Co.  was  not  responsible,  there  being  no 
contract  between  them  and  the  plaintiff.  See,  also,  as  to  holder  of  free 
railway  pass  having  paid  for  seat  in  a  Pullman  Car,  Ulrich  v.  N.  Y.  C. 
&  H.  R.  R.  R.  Co.,  108  N.  Y.  80  (1888). 

In  an  Alabama  case  the  court  put  the  carrier's  liability  on  the  ground 
of  contract,  and  therefore  held  that  some  of  the  joint  owners  of  a  steam- 
boat were  not  liable  for  the  loss  of  goods  transported  under  a  special 
contract  with  the  other  joint  owners  by  which  the  freight  payable  for 
the  transportation  was  to  be  taken  in  extinguishment  of  a  debt  due  from 
the  shipper  to  the  parties  with  whom  he  contracted.  Jones  z/.  Sims,  9 
Porter  (Ala.)  236  (1839). 


GROSS  AND  ORDINARY  NEGLIGENCE.         9 1 

the  carrier  from  liability  for  the  negligence  of  its  agents 
or  servants,  or  prohibiting  such  contracts  altogether.^ 

There  is  a  class  of  cases  in  which  courts  appear  to 
intimate  that  under  no  circumstances  will  a  stipulation  to 
exempt  a  carrier  from  liability  for  the  gross  negligence  of 
his  servants  be  supported,  although  a  contract  of  exemp- 
tion from  liability  for  ordinary  negligence  might  be.     It 


^  Iowa  Code,  sect.  1307.  In  Rose  v.  Des  Moines  Valley  R.  R.  Co., 
39  Iowa,  246  (1874),  it  was  held  that  this  statute  was  applicable  to  con- 
tracts with  passengers  as  well  as  with  shippers  of  freight.  In  another 
case  in  the  same  State,  the  court  held  that  the  provisions  of  the  Code  on 
this  subject  were  applicable,  although  the  contract  for  the  transporta- 
tion of  the  goods  in  question  was  made  at  a  reduced  rate,  and  the 
shipper  in  consideration  of  such  reduction  contracted  that  the  company 
should  not  be  liable  for  loss  caused  by  the  negligence  of  its  agents. 
Brush  V.  S.,  A.  &  D.  R.  R.  Co.,  43  Iowa,  554  (1876). 

An  act  was  passed  in  Kentucky  in  1870  authorizing  the  Louisville  & 
Nashville  R.  R.  Co.  to  make  special  contracts  for  transportation  of  live- 
stock. It  was,  however,  held  that  this  statute  should  not  be  construed 
so  as  to  authorize  the  company  to  contract  for  exemption  from  liability 
for  negligence  of  its  servants.  Louisville,  Cin.  &  Lex.  R.  R.  Co.  v. 
Hedger,  9  Bush  (Ky.),  645  (1873). 

In  Great  Britain,  section  7  of  the  Railway  and  Canal  Trafific  Act  (17 
and  18  Vict.  c.  3)  (1854),  enacted  that  stipulations  limiting  the  liability 
of  a  common  carrier  within  the  United  Kingdom  should  be  invalid,  un- 
less, in  the  opinion  of  the  court  before  which  a  case  arising  under  them 
came  to  be  tried,  such  stipulations  were  ''just  and  reasonable."  See 
Brown  v.  Manchester,  Sheffield  and  L.  R.  Co.,  L.  R.  9  Qu.  B.  Div.  230 
(1882). 

A  similar  provision  exists  in  Texas;  Rev.  Stat.,  art.  278.  Houston  & 
T.  C.  R.  R.  V.  Burke,  55  Texas,  323  (1881).  It  was  held,  however,  that 
this  was  not  infringed  by  a  provision  in  a  bill  of  lading  that  the  carrier, 
if  he  paid  a  loss,  should  have  the  benefit  of  any  insurance  effected  by 
the  shipper  upon  the  cargo  injured  or  lost.  British  F.  M.  Ins.  Co.  v. 
Gulf,  C.  &  S.  F.  R.  Co.,  63  Texas,  475  (1885);  see,  also,  The  Titania, 
19  Fed.  Rep.  loi  (1883). 

The  general  railroad  act  of  Michigan,  Session  Laws,  1855,  p.  173, 
prohibited  railroad  companies  formed  under  it  from  restricting  their 
common  law  liability.  It  was  held  in  McMillan  v.  Mich.  S.  &  N.  Ind. 
R.  R.,  16  Mich.  79  (1867),  that  this  statute  did  not  render  invalid  an 
agreement  between  the  carrier  and  the  shipper,  expressly  releasing  the 
carrier  from  part  of  his  common  law  liability. 

The  constitution  of  Nebraska,  adopted  in  1875,  provides  that  "the 
liability  of  railroad  corporations  as  common  carriers  shall  never  be  lim- 
ited." Missouri  Pac.  R.  Co.  v.  Vandeventer,  3  Law.  Rep.  Ann.  129; 
s.  c.  41  N.  W.  Rep.  998  (1889). 


92  THE  MODERN  LAW  OE  CARRIERS. 

is  believed,  however,  that  the  tendency  of  the  decisions  at 
the  present  time,  is  to  treat  this  distinction  claimed  to  exist 
between  the  different  degrees  of  negligence,  as  impracti- 
cable, and  that  there  are  probably  few  States  in  the  Union 
in  which  a  court  would  now  support  the  validity  of  a 
stipulation  exempting  a  carrier  from  liability  for  ordinary^ 
negligence,  and  at  the  same  time  charge  the  carrier  under 
such  a  contract  with  liability  for  gross  negligence.^ 

One  modification  of  the  rule,  which  the  courts  have 
adopted,  as  to  the  validity  of  contracts  for  exemption  from 
liability  for  specified  causes,  must  be  borne  in  mind.  Any 
departure  by  the  carrier  from  the  stipulated  mode  of  trans- 
portation will  deprive  him  of  the  benefit  of  any  clauses  in 
the  contract  limiting  his  liability,  and  during  the  period  of 
such  departure  his  full  liability  at  common  law  is  rein- 
stated. If,  for  example,  the  contract  with  the  shipper  pro- 
vides that  the  transportation  shall  be  entirely  by  rail,  and 
the  carrier  at  some  intermediate  point  transfers  the  goods 
to  a  steamboat,  the  entire  provisions  of  the  contract  which 


^  Austin  V.  Manchester  S.  &  L.  R.  Co.,  lo  Comm.  B.  454,  474  (1850); 
Hinton  v.  Dibbin,  2  Qu.  B.  646  (1842),  per  Denman,  C.  J.;  Railroad  Co. 
V.  Lockwood,  17  Wall.  357  (1873);  see  Ohio  &  Miss.  R.  R.  v.  Selby,  47 
Ind.  471,  484  (1874). 

This  distinction  as  to  gross  negligence  is  taken  in  the  following, 
among  other  cases:  111.  Central  R.  R.  Co.  v.  Morrison,  19  111.  136  (1857); 
111.  Central  R.  R.  v.  Read,  37  111.  484  (1865);  Thayer  v.  St.  Louis  A.  & 
T.  H.  R.  R.  Co.,  22  Ind.  26  (1864);  Mich.  S.  &  N.  Ind.  R.  R.  v.  Heaton, 
37  Ind.  448  (187 1);  Southern  Ex.  Co.  v.  Armstead,  50  Ala.  350  (1874); 
Arnold  v.  Illinois  Central  R.  R.,  83  111.  273  (1876).  In  the  latter  case  it 
was  held  to  be  gross  negligence  in  an  express  company  to  deposit  goods 
on  the  platform  of  a  railroad  station  at  the  end  of  its  route,  and  give  no 
notice  to  the  consignee,  although  when  the  goods  were  received  for  trans- 
portation it  notified  the  consignor  that  it  had  no  agent  at  the  place  of 
destination  But  it  is  now  settled  law  in  Alabama  and  Indiana,  that  no 
stipulation  exempting  the  carrier  from  liabiHty  for  negligence  is  valid; 
see  cases  cited  under  note  i,  p.  ^-i,,  ante. 

In  Wisconsin  it  is  held  that  a  carrier  may  relieve  himself  from  liability 
for  the  ordinary  or  slight  negligence  of  his  servants,  but  not  for  their 
gross  negligence.     Annas  v.  Milwaukee  &  N.  R.  Co ,  67  Wis.  46  (1886). 


DEVIATION    FROM    AGREED    ROUTE  93 

limit  the  carrier's  liability,  are  displaced,  and  become  in- 
operative.^ 

One  of  the  leading  cases  on  this  subject  rests  the  de- 
cision upon  the  ground  that  the  injury  is  really  caused, 
not  by  negligence  on  the  part  of  the  carrier,  but  by  an 
entire  and  willful  abandonment  of  all  effort  to  perform  the 


*  Collins  V.  Bristol  and  Exeter  R.  Co.,  ii  Excheq.  790  (1856);  Blos- 
som V.  Grififin,  13  N.  Y.  569  (1856);  Magnin  v.  Dinsmore,  70  N.  Y.  410 
(1877);  Graham z'.  Davis,  4  Ohio  St.  362  (1854);  Fatman  v.  Cincinnati,  H. 
&  D.  R.  R.  Co.,  2  Disney  (Ohio),  248  (1858);  Galveston  H.  &  H.  R. 
Co.  V.  Allison,  59  Texas,  193  (1883);  Robinson  v.  Merchants'  Despatch 
T.  Co.,  45  Iowa,  470  (1877). 

In  this  latter  case,  the  stipulation  of  the  contract  was  that  the  goods 
should  be  transported  "through,  without  transfer,  in  cars  owned  and 
controlled  by  the  company."  The  goods,  however,  were  transferred  to 
other  cars,  and  while  in  these  cars  were  burned.  It  was  held  that  the 
carrier  was  liable  for  the  loss  notwithstanding  the  contract  contained  an 
express  stipulation  exempting  him  from  loss  by  fire. 

In  Hand  v.  Baynes,  4  Whart.  (Pa.)  204  (1839),  the  contract  stated 
that  the  transportation  was  to  be  by  canal.  On  reaching  the  canal,  the 
master  of  the  vessel  was  informed  that  the  locks  were  out  of  order,  and 
that  his  vessel  could  not  go  through.  He  consequently  undertook  to  go 
by  Chesapeake  Bay,  and  while  engaged  in  the  voyage  the  vessel  and 
cargo  were  lost  in  a  storm.  The  court  held  that  the  stipulation  as  to 
the  method  of  transit,  was  absolute,  and  that  the  carrier  was  liable, 
although  the  loss  was  occasioned  by  a  peril  of  the  sea. 

The  disability  in  this  latter  case  was  strictly  analogous  to  that  caused 
by  a  blockade.  In  such  case,  the  rule  is  well  settled,  that  if  the  blockade 
is  likely  to  be  continued,  it  is  the  duty  of  the  carrier  to  return  to  the 
port  of  departure. 

In  Hunnewell  v.  Taber,  2  Sprague  i  (1854),  the  bill  of  lading  con- 
tained a  clause,  "not  accountable  for  leakage."  The  carrier  failed  to 
comply  with  an  agreement  as  to  the  method  of  caring  for  the  casks,  and 
it  was  held  that  he  was  liable  for  the  injury  caused  by  leakage,  notwith- 
standing the  cluase  of  exemption. 

So  a  failure  by  a  carrier  to  deliver  to  the  stipulated  connecting  line 
makes  him  liable  as  insurer  for  injury  on  the  line  to  which  the  goods 
are  delivered.  Isaacson  v.  N.  Y.  Central  &  H.  R.  R.,  94  N.  Y.  278 
(1884).  But  a  carrier  may  stop  at  an  intermediate  port  not  mentioned 
in  his  bill  of  lading  if  it  is  his  custom  to  do.  Lowry  v.  Russell,  8  Pick. 
(Mass.)  360  (1829). 

In  Johnson  v.  the  N.  Y.  Cent.  R.  R.  Co.,  3 1  Barb.  (N.  Y.)  196  ( 1 85  7), 
it  was  held  that  a  deviation  rendered  necessary  by  unforeseen  circum- 
stances was  justifiable.  Where  a  bill  of  lading  authorizes  a  vessel  "to 
call  at  any  port  or  ports,"  this  means  in  course  of  her  voyage,  and 
does  not  justify  her  in  going  40  miles  out  of  her  course  to  pick  up  a 
disabled  vessel.     Ardan  S.  S.  Co.  v.  Theband,  35  Fed.  R.  620  (iT"" 


94  THE   MODERN   LAW   OF   CARRIERS. 

contract,  which  of  itself  constitutes  a  breach  of  the  carrier's 
duty,  and  takes  the  case  entirely  out  of  the  scope  of  the 
clauses  of  limitation.^  But  if  there  be  good  cause  for  the 
deviation,  it  has  been  sustained  and  approved.^ 

The  diversity  in  the  decisions  that  have  been  cited  is 
to  be  regretted.  It  is  difficult  for  a  lawyer  to  undertake 
to  hold  the  scales  when  tribunals  of  learning,  ability  and 
experience  have  differed.      Nevertheless,  a  few  observa- 

^  Keeney  v.  G.  T.  R.  Co.,  47  N.  Y.  525  (1872);  affirming  same  case 
59  Barb.  104  (1870).  This  was  the  case  of  a  live-stock  contract,  which 
provided  that  the  owner  should  undertake  "  all  risk  of  loss,  injury, 
damage  and  other  contingencies,  in  loading,  unloading,  conveyance,  and 
otherwise,"  and  that  the  carriers  "  do  not  undertake  to  forward  the 
animals  by  any  particular  train  or  at  any  specified  hour,  neither  are  they 
responsible  for  the  delivery  of  the  animals  within  any  certain  time,  or 
for  any  particular  market."  The  carrier,  in  order  to  forward  more 
rapidly  other  freight  which  had  been  entrusted  to  it,  switched  the  cars 
containing  the  cattle  to  a  side  track,  and  allowed  them  to  remain  there 
for  two  or  three  days  in  a  position  where  they  could  not  be  unloaded, 
fed,  or  watered.  In  this  case,  manifestly,  there  was  a  breach  of  the 
carrier's  obligation  to  forward  freight  without  discriminating  in  favor  of 
one  shipper  against  another.  See  also  Clark  v.  St.  Louis,  K.  C.  &  N.  R. 
Co.,  64  Mo.  440  (1877).  On  a  somewhat  similar  principle  it  has  been 
held,  that  where  a  carrier  receives  goods  to  be  transported  with  direc- 
tions to  forward  them  at  once,  and  the  goods  are  allowed  to  remain  in 
the  carrier's  warehouse  for  his  own  convenience,  the  carrier  is  liable  for 
the  destruction  of  the  goods  by  fire  before  the  commencement  of  the 
transit.  Moses  v.  B.  &  M.  R.  R.  Co.,  24  N,  H.  71  (1851);  Heyl  v.  In- 
man  S.  S.  Co.,  14  Hun  (N.  Y.),  564  (1878). 

In  Magnin  v.  Dinsmore,  70  N.  Y.  410  (1877),  the  court  held  that  a 
carrier  is  liable  for  conversion  of  the  goods  transported  or  for  the  willful 
misfeasance  of  his  servants  in  transporting  the  same,  notwithstanding  a 
special  contract  exempting  the  carrier  for  liability  for  loss  from  negligence 
of  his  servants.  In  other  words,  it  is  held  that  willful  conversion  or  mis- 
feasance is  not  negligence.  The  court,  however,  say  that  to  prove  con- 
version of  the  goods  under  such  a  bill  of  lading,  it  is  not  enough  to  prove 
a  technical  conversion,  such  as  demand  and  refusal,  but  that  an  actual 
wrongful  withholding  or  disposal  of  the  goods  must  be  established  to 
show  misfeasance.     An  affirmative  act  of  wrong  doing  must  be  proved. 

2  InReganz'.  Grand  Trunk  R.  Co.,  61  N.  H.  579  ( 1 881),  "  the  defend- 
ant's undertaking  was  to  carry  the  plaintiff's  goods  from  Groveton  to 
Portland,  and  deliver  them  to  the  boat  for  transportation  to  the  consignee 
at  Boston."  Transportation  by  the  boat  became  impossible,  owing  to  a 
storm.  The  goods  were  perishable,  and  it  was  held  that  the  carrier  did 
right  to  forward  them  by  rail,  but  was  bound  to  notify  the  consignee  of 
the  change  of  route. 


NEGLIGENCE   OF   CARRIER'S   SERVANTS.  95 

tions  on  the  merits  of  the  rule  adopted  by  the  English, 
French,  and  many  American  courts  may  not  seem  out  of 
place. 

First,  then,  it  is  one  of  the  maxims  of  the  common 
law,  that  modus  et  conventio  vincunt  legem.  That  is  to 
say,  in  the  absence  of  positive  prohibition  or  well  settled 
public  policy  having  the  force  of  positive  prohibition,  the 
agreement  of  the  parties  is  the  law  of  the  case.  In  the 
next  place,  it  is  to  be  observed  that  it  is  always  dangerous 
for  a  court  to  undertake  to  determine  public  policy.  That 
would  seem  to  be  properly  the  province  of  the  Legisla- 
ture. It  is  true  that  some  rules  are  so  firmly  established 
by  common  consent,  that  there  needs  no  legislative  de- 
claration to  establish  them,  yet  it  must  also  be  admitted 
that  these  rules  are  few.  It  is  also  true,  that  what  may 
be  at  one  time  a  wise  public  policy,  under  different  cir- 
cumstances and  at  different  times  may  cease  to  be  un- 
wise, yet  no  one  knows  better  than  a  lawyer  how  difficult 
it  is  to  induce  a  court  which  has  once  laid  down  a  rule 
on  the  subject  to  recede  from  it.  What  was  originally 
public  policy  becomes  adjudication  and  has  the  force  of 
an  adjudication,  and  sometimes  under  different  circum- 
stances becomes  a  public  detriment  instead  of  a  public 
benefit.^ 

Again  it  would  seem  that  the  very  fact  that  so  many 
courts  of  learning  and  ability  had  determined  that  a  par- 
ticular agreement  was  not  against  public  policy,  was  suf- 
ficient at  any  rate  to  show  that  there  was  doubt  enough 

1  Some  very  judicious  observations  on  this  subject  will  be  found  in 
the  Girard  Will  Case,  2  How.  (U-  S.)  197  (1844);  Mollis  v.  Drew  Theol. 
Sem.,  95  N.  Y.  166  (1884);  Kellogg  v.  Larkin,  3  Chandler  (Wis.),  133, 
142  (1851). 

In  Haddenz;.  The  Collector,  5  Wallace,  107,  in  (1866),  the  court  say: 
"What  is  termed  the  policy  of  the  Government  with  reference  to  any 
particular  legislation  is  generally  a  very  uncertain  thing,  upon  which  all 
sorts  of  opinions,  each  variant  from  the  other,  may  be  formed  by  dif- 
ferent persons.  It  is  a  ground  much  too  unstable  upon  which  to  rest 
the  judgment  of  the  court  in  the  interpretation  of  statutes." 


96  THE    MODERN    LAW   OF    CARRIERS. 

on  the  subject  to  induce  another  court  to  refrain  from 
saying  that  the  case  was  so  clear  that  it  did  not  admit  of 
doubt. 

Another  consideration,  which  does  not  appear  to  have 
been  adverted  to  by  the  United  States  Supreme  Court, 
until  very  recently,  would  seem  to  be  entitled  to  even 
more  weight  than  those  which  have  been  suggested. 

It  was,  as  already  shown,  enacted  by  the  Federal  Leg- 
islature in  1 85 1,  that  the  owner  or  charterer  of  a  ship 
might  limit  his  liability  for  the  neglect  of  his  agents  by 
abandoning  his  interest  in  the  vessel  and  her  freight 
then  pending,  and  that  he  is  not  liable  at  all  for  loss 
from  fire  caused  by  the  neglect  of  his  agents.  How,  then, 
in  the  face  of  such  a  legislative  declaration,  can  it  be  said 
that  an  agreement  limiting  his  liability  for  the  negligence 
of  his  agents  is  against  public  policy  ? 

Again,  in  the  first  section  of  the  act  of  March  3d,  185 1, 
it  was  provided  "  that  nothing  in  this  act  contained 
shall  prevent  the  parties  from  making  such  contract  as 
they  please,  extending  or  limiting  the  liability  of  such 
owner.  "^ 

Whatever  reasons  may  originally  have  existed  for  the 
requirement  that  a  carrier  should  answer  for  all  loss  aris- 
ing from  the  negligence  of  his  agents,  there  would  seem 
to  be  no  good  reason  why  a  carrier  who  takes  all  reason- 
able precautions  to  secure  competent  and  faithful  agents, 
should  be  liable  for  a  fault  on  their  part,  of  which  he  has 
no  knowledge  and  which  he  could  not  in  any  wa}^  prevent. 
The  business  of  carriers  has  assumed  such  vast  propor- 
tions that  it  is  impossible  for  them  to  exercise  personal 

1  It  was  held  in  Walker  v.  The  Transportation  Company,  3  Wallace^ 
150  (1865),  that  this  provision  did  not  apply  to  an  implied,  but  only  to 
an  express  agreement.  But  it  does  apply  to  an  express  agreement,  and 
would  seem  a  recognition  of  the  validity  of  such  an  agreement. 

It  is  true  that  this  portion  of  the  original  act  has  not  been  re-enacted 
in  the  Revised  Statutes,  but  as  a  legislative  declaration  on  the  subject  of 
public  policy  it  would  seem  entitled  to  as  much  weight  as  if  it  had  been. 


NEGLIGENCE  OF  THE  CARRIERS  SERVANTS.  97 

supervision  over  all  their  employees.  And  it  would  seem 
unjust  to  impose  upon  tliem  an  absolute  responsibility,  for 
which  no  contract  is  allowed  to  provide  and  against  which 
no  amount  of  care  can  furnish  an  entire  safeguard. 

The  question  is  really  one  of  the  amount  of  considera- 
tion that  the  shipper  or  passenger  is  willing  to  pay.  He 
is  not  bound  to  accept  the  qualified  engagement  from  the 
carrier,  but  may  insist  that  his  goods  shall  be  carried 
under  the  common  law  liability  of  such  carrier.  On  the 
other  hand,  it  would  seem  unjust  to  say  that  if  he  were 
willing  for  a  less  remuneration  to  contract  for  the  carriage 
of  his  goods,  and  thus  act  as  his  own  insurer,  or  pro- 
cure insurance  elsewhere,  he  should  not  be  allowed  to  do 
so. 

For  these  reasons  it  is  believed  that  the  doctrine  of 
the  English  and  New  York  Courts  is  just,  and  that  in  the 
future  it  should  prevail  as  the  law  of  the  whole  country.^ 

It  is  admitted  by  all  courts,  however,  and  this  should 
be  borne  distinctly  in  mind,  that  no  language,  however 
general,  will  be  construed  as  relieving  the  carrier  from 
liability  for  the  negligence  of  his  agents  unless  this  is 
distinctly  and  specifically  expressed  in  the  contract.^ 

SECTION   III. 

LIVE  STOCK   CONTRACTS.— INTRINSIC   DEFECTS. 

The  common  law  liability  of  a  carrier  may  also  be 
limited  by  the  intrinsic  character  of,  or  defects  in  the  sub- 

^  The  French  law  on  this  subject  is  in  conformity  with  the  decision 
of  the  English  and  some  of  the  State  courts  of  the  United  States.  The 
French  authorities  on  this  subject  are  stated  in  the  very  able  brief  of 
appellant's  counsel  in  129  U.S., pp.  417,  418.  The  German,  Italian  and 
Dutch  authorities,  cited  on  the  same  and  following  pages,  show  that  the 
law  of  those  countries  is  the  same  as  the  French  law.  This  law  had 
been  differently  stated  in  Bedarride's  Droit  Commercial,  Titre  VI,  des 
Commissionaires,  sect.  252,  p.  268.  Sect.  251,  p.  267,  applies  to  loss  from 
defect  in  ship  or  vehicle. 

^  See  cases  cited,  Chap.  X,  sect.  3. 
7 


98  THE   MODERN   LAW   OF   CARRIERS. 

ject-matter  of  the  contract.  When  slavery  existed  in  the 
United  States  this  limitation  was  applied  to  contracts 
for  the  carriage  of  slaves,  and  it  was  held  that  the  carrier, 
in  such  cases,  was  not  an  insurer  but  a  carrier  of  passen- 
gers, and  was  liable  only  for  want  of  care  and  skill.^ 

This  rule  has  found  its  most  frequent  illustration  in 
the  case  of  contracts  for  the  transportation  of  live  stock. 
The  carrier  who  undertakes  the  carriage  of  living  animals 
is  not  answerable  for  damages  caused  by  the  conduct  or 
propensities  of  the  animals  themselves.  "  In  other  re- 
spects the  common  law  responsibilities  of  the  carrier  will 
attach."  ^ 

There  are  cases  which  hold  that  in  the  absence  of  a 
special  contract  the  extent  of  the  carrier's  liability  for  in- 


^  Boyce  v.  Anderson,  2  Peters,  150  (1829);  Clark  v.  McDonald,  4 
McCord  (S.  C),  223  (1827)  ;  Williams  v.  Taylor,  4  Porter  (Ala.),  234 
(1836). 

2  South  &  North  Ala.  R.  R.  v.  Henlein,  52  Ala.  606  (1875);  Agnew 
V.  Steamer  Contra  Costa,  27  Cal.  425  (1865);  Indianapolis  &  St.  Louis  R. 
Co.  V.  Jurey,  8  Bradwell  (111.  App.),  160  (1880);  Chicago,  R.  I.  &  P.  R.  R. 
V.  Harmon,  12  Jbid,  54  (1882);  McCoy  7^.  The  K.  &  D.  M.  R.  Co.,  44  Iowa, 
424  (1876);  Evans  v.  Fitchburg  R.  R.,  iii  Mass.  142  (1872);  Smith  v. 
New  Haven  &  N.  R.  R.,  94  Mass.  531  (1866);  Chicago,  St.  L.  &  N.  O.  R. 
R.a  Abels,  60  Miss.  1017  (1883);  Clarke  z^.  Rochester  &S.  R.R.,  14  N.Y. 
570  (1856);  Mynard  v.  Syracuse,  B.  &  N.  Y.  R.  R.,  71  N.  Y.  180  (1877); 
Cragin  z^.  New  York  Central  R.  R.,  51  N.  Y.  61  (1872);  Bamberg  z^. 
South  Carolina  R.  R.,  9  South  Car.  61  (1877);  Palmer  z;.  Grand  Junction 
R.  Co.,  4  Mees.  &  Wels.  749  (1839);  Kimball  v.  Rutland  &  Burlington  R. 
R.,  26  Vt.  247  (1854).  Cf.  Missouri  Pacific  Ry.  Co.z/.  Harris,  67  Texas, 
166  (1886);  Missouri  Pacific  R.  Co.  v.  Fagan  (Texas),  9  S.  W.  Rep.  749 
(1888);  Rixford  v.  Smith,  52  N.  H.  355  (1872);  Maslin  v.  Baltimore  & 
O.  R.  R.,  14  W.  Va.  180  (1878). 

In  Myrick  v.  Michigan  Central  R.  R.  Co.,  107  U.S.  102,  107  (1882), 
the  court  say:  "Although  a  railroad  company  is  not  a  common  carrier 
of  live  animals  in  the  same  sense  that  it  is  a  carrier  of  goods,  its  re- 
sponsibilities being  in  many  respects  different,  yet  when  it  undertakes 
generally  to  carry  such  freight  it  assumes,  under  similar  conditions,  the 
same  obligations,  so  far  as  the  route  is  concerned  over  which  the  freight 
is  to  be  carried." 

In  some  States,  however,  the  rule  appears  to  be  different.  It  is  there 
held  that  railroads  are  not  bound  to  receive  live  stock  as  common  car- 
riers, and  if  they  carry  them  at  all,  may  do  so  under  a  different  liability 
from  that  of  other  freight.     See  post,  p.  105,  note  i. 


LIVE   STOCK   CONTRACTS — INTRINSIC   DEFECTS.         99 

juries  to  live  stock  is  as  great  as  it  would  be  under  a  con- 
tract for  tlie  carriage  of  inanimate  objects.^ 

*  Wilson  V.  Hamilton,  4  Ohio  St.  Rep.  722  (1855);  Kansas  Pacific 
R.  Co.  V.  Nichols,  9  Kansas,  235  (1872).  In  this  case  the  court  laid 
down  the  rule,  that  whenever  a  railroad  company  receives  cattle  or  live 
stock  to  be  transported  over  its  road,  such  company  assumes  all  the  re- 
sponsibilities of  a  common  carrier  of  freight,  except  so  far  as  such 
responsibility  may  be  modified  by  special  contract. 

In  Nebraska  it  is  held  that  a  special  contract  for  the  carriage  of  live 
stock  which  provides  that  the  carrier  shall  not  be  liable  as  such  for  in- 
jury to  the  stock  is  invalid,  and  that  the  carrier  cannot  thus  divest  itself 
of  its  common  law  liability.  Atchison  &  Nebraska  R.  R.  v.  Washburn, 
5  Neb.  117  (1876);  see  Hooper  v.  Wells,  27  Cal.  11  (1864).  In  Illinois 
a  somewhat  more  liberal  rule  has  been  laid  down.  In  Illinois  Central  R. 
R.  V.  Morrison,  19  111.  136  (1857),  the  carrier  agreed  to  carry  cattle  at 
less  than  the  usual  rates,  and  the  shipper,  in  consideration  of  this,  agreed 
that  the  transportation  should  be  at  his  risk,  and  that  they  should  be  in 
custody  of  his  agent.  Held  that  the  carrier  under  such  circumstances 
was  liable  only  for  the  gross  negligence  or  willful  misfeasance  of  his 
servants. 

But  in  Saint  Louis  &  S.  E.  R.  Co.  v.  Dorman,  72  111.  504,  506  (1874), 
the  court  say:  "The  common  law  liability  of  a  carrier  to  deliver  live 
animals  is  not  different  from  that  where  the  delivery  of  merchandise  or 
other  dead  matter  is  concerned.  Cars  of  sufficient  strength  for  such 
purpose  should  always  be  provided,  and  the  want  of  them  is  negli- 
gence." 

In  Alabama  it  is  held  that  a  contract  exempting  the  carrier  from  lia- 
bility for  negligent  injuries  to  cattle,  not  arising  from  gross  negligence, 
is  invalid.     E.  Tenn.,  Va.  &  G.  R.  R.  v.  Johnston,  57  Ala.  596  (1884). 

In  Georgia  it  is  held  that  a  carrier  and  shipper  may  lawfully  agree 
that  the  former  shall  not  be  liable  for  any  damage  to  live  stock  from 
any  cause  (<?.  g.  overloading  or  heat),  except  that  resulting  from  the 
conduct  or  running  of  its  trains.  Mitchell  v.  Georgia  R.  R.,  68  Ga.  644 
(1882). 

In  the  same  State  a  stipulation  exempting  the  carrier  from  liability 
for  injury  to  live  stock  caused  by  collision  or  derailment  is  held  unlaw- 
ful. Georgia  R^  R.  v.  Spears,  66  Ga.  485  (1881);  s.  c.  42  Am.  Rep. 
81. 

In  this  case  the  court  say  :  "At  common  law  the  only  exceptions  to 
the  liability  of  the  common  carrier  for  losses  were,  where  they  occurred 
by  the  act  of  God  or  the  public  enemy.  But  to  these  have  since  been 
added  cases  where  the  goods  were  lost  by  their  own  decay,  from  an 
inherent  infirmity,  or  by  the  fault  of  the  owner  himself.  And  still 
later  and  from  the  necessity  and  justice  of  the  case,  another  exception 
has  been  introduced  in  favor  of  the  carrier  of  live  stock,  of  account- 
ability for  its  loss  or  injury  resulting  from  its  own  uncontrollable 
vicious  propensities,  and  the  damages  incident  to  its  carriage  from  its 
inherent  natural  character.  So  that  it  now  seems  to  be  settled  that  a 
carrier   of  living  animals  as  freight  is  a  common    carrier  as   to  such 


lOO  THE   MODERN   LAW   OF   CARRIERS. 

It  certainly  is  the  carrier's  duty  to  guard  against  in- 
juries which  would  naturally,  in  the  absence  of  appropri- 

freight,  and  liable  as  such,  with  the  foregoing  exception.  That  is  ta 
say,  he  is  liable  as  in  other  cases,  except  from  the  act  of  God,  the  public 
enemy,  or  of  the  animals  themselves,  unless  he  has  further  protected 
himself  by  contract." 

In  Ritz  V.  Penn.  R.  R.,  3  Phila.  82  (1858),  Woodward,  J.,  said: 
"  The  common  law  duties  and  liabilities  of  common  carriers  attach  to 
the  carriers  of  live  stock.  If  they  hold  themselves  out  to  the  world  as 
carriers  of  this  species  of  property,  they  are  bound  to  receive  and  trans- 
port all  that  is  offered  to  them  on  the  tender  of  reasonable  compensa- 
tion for  the  service.  An  actual  tender  is  not  necessary  if  the  party 
avers  and  proves  his  readiness  to  pay  the  money  for  the  carriage.  They 
are  bound  to  provide  suitable  vehicles  for  the  transportation,  with  all 
reasonable  equipments,  and  servants  to  take  care  of  them,  and  in  gene- 
ral, to  use  all  the  diligence  which  prudent  and  cautious  men  usually  em- 
ploy for  the  preservation  of  property  entrusted  to  their  care.  ...  I 
hold  all  stipulations  and  agreements  void  that  have  for  their  object  the 
licensing  of  negligence  on  the  part  of  a  common  carrier.  No  matter 
how  distinct  the  terms  of  a  release  or  valuable  the  consideration  in 
which  it  is  founded,  the  carrier  is  still  bound,  on  principles  of  social 
duty,  to  carry  with  ordinary  diligence  and  care.  The  want  of  these  is 
negligence,  and  for  that  he  is  responsible  in  damages.  Stipulations  for 
exemption  are  against  the  policy  of  the  law,  and  therefore  the  law  will 
not  enforce  them." 

In  England  stipulations  that  horses  shall  be  carried  at  the  owner's 
risk  are  held  to  be  reasonable  and  valid.  McCance  v.  London  &  N. 
W.  R.  Co.,  7  H.&  N.  477  (1861);  Gannell  v.  Ford  (Q.  B.),  5  Law  Times,  N. 
S.  604  (1862);  Harrison  v.  London,  B.  &  S.  R.,  2  B.  &  Sm.  122  (i860); 
s.  c.  8  Jurist,  N.  S.  740;  31  Law  Journal  (Q.  B.),  113;  Great  Northern 
Railway  Company  v.  Morville,  16  Jur.  528;  s.  c.  21  L.  J.,  Q.  B.  319  (1852). 

They  are  not,  however,  valid,  so  far  as  they  purport  to  relieve  the 
carrier  from  liability  for  defective  equipment.  Ante,  Ch.  IV,  sect,  i, 
pp.  77,  et  seq. 

In  Squire  v.  N.  Y.  Cent.  R.  R.  Co.,  98  Mass.  239  (1867),  it  was  held 
that  an  express  stipulation  that  a  carrier  should  not  be  liable  for  in- 
juries to  live  stock  in  consequence  of  their  own  intrinsic  defects  differs 
very  little,  if  at  all,  from  the  rule  of  law  when  there  is  no  contract. 

In  Texas  and  Missouri  a  railroad  receiving  cattle  receives  them  as 
a  common  carrier  and  cannot  exempt  itself  from  liability  for  negligence. 
Missouri  Pac.  R.  Co.  v.  Harris,  67  Texas,  166  (1886);  Clark  z/.  St.  Louis, 
R.  C.  &  N.  R.  Co.,  64  Missouri,  440  (1877). 

Under  the  Texas  statute  providing  that  carriers  shall  not  limit  "  the 
liability  as  it  exists  at  common  law,"  it  is  held  that  they  are  made  com- 
mon carriers  of  live  stock,  and  are  liable  for  injuries  to  cattle  to  the  same 
extent  as  for  injuries  to  other  property.  Gulf,  C  &  S.  F.  Ry.  v.  Trawick^ 
68  Texas,  314  (1887).  Yet  the  court  admits  that  at  common  law  car 
riers  are  not  liable  for  injuries  arising  from  the  "  uncontrollable  vicious 
propensities  of  live  stock."'     And  in  Penn.  it  is  held,  even  in  contracts 


i 


LIVE   STOCK   CONTRACTS — INTRINSIC   DEFECTS.       lOI 

ate  care,  be  caused  by  the  natural  propensities  of  the  ani- 
mals carried/ 

In  one  case  the  duties  and  liability  of  a  carrier  of  live 
5tock  are  assimilated  to  those  of  an  inn-keeper.^  But  the 
cases  generally  do  not  go  to  this  extent,  nor  can  it  be  con- 
sidered as  settled  law  that  there  is  any  obligation  on  the 
part  of  the  carrier  to  feed  and  water  the  stock.     It  has 

for  the  carriage  of  live  stock,  that  the  carrier  cannot  exempt  himself  from 
the  consequences  of  gross  negligence.  Penn.  R.  R.  v.  Raiordan,  119 
Penn.  577;  s.  c  13  Atl.  Rep.  324  (1888). 

^  Clarke  v.  Rochester  &  Syracuse  R.  R.,  14  N.  Y.  570  (1856).  In 
this  case  a  horse  was  tied  by  a  halter  to  the  side  of  the  car;  he  fell  dur- 
ing the  journey  and  was  choked.  The  evidence  tended  to  show  that  if 
a  servant  of  the  carrier  had  inspected  the  car  from  time  to  time,  the 
horse  could  have  been  saved. 

The  court  said:  "The  plaintiffs  contend  for  the  rule  that  the  carrier 
is  bound  to  transport  in  safety  and  deliver  at  all  events,  save  only  the 
known  cases  in  which  a  carrier  of  ordinary  chattels  is  excused,  while 
the  defendants  maintain  that  they  are  not  insurers  at  all  against  the 
class  of  accidents  which  arise  from  the  vitality  of  the  freight.  We  are 
of  opinion  that  neither  of  these  positions  is  well  taken.  The  carrier  of 
animals,  by  a  mode  of  conveyance  opposed  to  their  habits  and  instincts, 
has  no  such  means  of  securing  absolute  safety.  They  may  die  of  fright, 
or  by  refusing  to  eat;  or  they  may,  notwithstanding  every  precaution, 
destroy  themselves  by  attempting  to  break  away  from  the  fastenings  by 
which  they  are  secured  in  the  vehicle  used  to  transport  them,  or  they 
may  kill  each  other.  In  such  cases,  supposing  all  proper  care  and  fore- 
sight to  have  been  exercised  by  the  carrier,  it  would  be  unreasonable  in 
a  high  degree  to  charge  him  with  the  loss.  But  the  rule  which  would 
exempt  the  carrier  altogether  from  accidents  arising  out  of  the  peculiar 
■character  of  the  freight,  irrespective  of  the  question  of  negligence,  would 
be  equally  unreasonable.  It  would  relieve  the  carrier  altogether  from 
those  necessary  precautions  which  any  person  becoming  the  bailee,  for 
hire,  of  animals  is  bound  to  exercise,  and  the  owner,  where  he  did  not 
himself  assume  the  duty  of  seeing  to  them,  would  be  wholly  at  the  mercy 
of  the  carrier.  It  was  for  the  jury  to  say  whether  prudence  did  not  re- 
quire that  a  servant  of  the  defendants  should  have  been  stationed  in  or 
about  the  horse  car,  so  as  to  observe  the  conduct  and  condition  of  the 
animals  constantly  or  at  intervals." 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Ellison,  70  Texas,  491 ;  s.  c  7  S.  W.  Rep. 
785  (1888).  He  must  at  least  use  ordinary  care.  German  v.  Chicago 
&  N.  W.  R.  R.,  38  Iowa,  127  (1874). 

2  Porterfield  v.  Humphreys,  8  Humph.  (Tenn.)  497  (1847).  And 
accordingly  it  was  held  in  this  case  that  the  owner  of  a  steamboat  was 
liable  for  the  value  of  a  horse  which  he  was  transporting,  and  which, 
being  insecurely  fastened,  got  loose  in  the  night  and  jumped  over- 
board. 


I02  THE   MODERN   LAW   OF   CARRIERS. 

beeu  held  that  such  obligation  will  not  be  implied  from  a 
stipulation,  in  the  contract  for  their  carriage,  that  in  case 
of  accident  or  delay,  the  owners  are  "  to  feed,  water,  and 
take  proper  care  of  the  stock.  "^ 

Special  contracts  for  the  carriage  of  such  stock  are 
very  common,  and  have  received  from  the  courts  a  liberal 
construction.  Thus,  for  example,  when  the  shipper  con- 
tracted that  the  carrier  should  not  be  answerable  for  de- 
lays, and  that  the  owner's  agent  was  to  take  care  and 
charge  of  the  stock,  and  the  cars  were  detained  by  a  snow- 
storm, it  was  held  that  the  carrier  was  not  bound  to  afford 
facilities  for  unloading  the  cattle  at  the  place  where  the 
delay  occurred,  and  thus  enable  the  owner's  agent  to  take 
proper  care  of  them.'^ 

Such  contracts  will  be  construed  with  reference  to 
their  subject-matter  and  to  its  intrinsic  qualities.  Thus,  a 
contract  provided  that  the  shipper  should  assume  all  risk 
which  the  animals  might  receive  in  consequence  of  any  of 
them  being  wild,  unruly,  etc.,  or  from  delays.  It  was 
held  that  this  referred  only  to  injuries  caused   to  the  ani- 

1  Louisville  &  Nashville  R.  R.  v.  Trent,  ii  Lea  (Tenn.),  82  (1883). 
In  Dunn  v.  Hannibal  &  St.  Jo.  R.  R.,  68  Mo.  268  (1878),  it  was  held 
that  a  carrier  which  was  prevented  at  the  junction  of  a  connecting  line 
from  forwarding  mules  immediately,  was  bound  to  feed  and  water  them, 
although  they  were  accompanied  by  the  owner,  who  had  contracted  to 
take  care  of  them  while  in  transit.  But  this  was  put  on  the  ground  that 
the  delay  at  the  connecting  point  was  due  to  the  carrier's  negligence. 
In  New  York,  on  the  other  hand,  it  is  settled  that  the  carrier,  if  delay  in 
transportation  occur,  is  not  bound  to  unload  the  cattle,  but  is  bound, 
upon  request,  to  afford  reasonable  facilities  to  enable  the  owner  so  to 
do,  even  if  this  should  require  the  carrier  to  send  forty  miles  for  an  en- 
gine. Bills  V.  N.  Y.  Central  R.  R.,  84  N.  Y.  5  (1881);  s.  C.  53  N.  Y. 
608  (1873).  In  England  it  is  held  that  when  a  horse  is  shipped  "at 
owner's  risk"  the  carrier  is  not  bound  to  water  and  feed  them  while  he 
is  at  the  terminal  station,  awaiting  delivery.  Wise  v.  Great  Western  R. 
Co.,  I  Hurlst.  &  N.  63  (1856);  Central  R.  R.  &  Banking  Co.  v.  Smitha, 
4  So.  Rep.  708;  s.  c.  85  Ala.  47  (1888).  In  Mo.  Pacific  Ry.  Co.  v. 
Fagan,  9  S.  W.  Rep.  (Texas),  749  (1888),  a  carrier  of  live  stock  was 
held  bound  to  feed  and  water  them. 

»  Penn  v.  Buffalo  &  Erie  R.  R.,  49  N.  Y.  204  (1872);  Bankard  v. 
B.  &  O.  R.  R.  Co.,  34  Md.  197  (1870). 


UVE  STOCK  CONTRACTS — INTRINSIC   DEFECTS.      103 

mals  themselves  by  delay,  and  not  to  other  losses,  such 
as  depreciation  in  market  price.^ 

Such  contracts  cannot  relieve  the  carrier  from  his  ob- 
ligation to  provide  suitable  vehicles  for  the  transportation 
of  the  cattle.^ 

But  if  the  shipper,  from  choice,  selects  cars  not  be- 
longing to  the  carrier  for  the  transportation  of  his  stock, 
the  carrier  is  not  liable  for  defects  in  such  cars.^ 

The  carrier  may  make  reasonable  rules  and  regu- 
lations in  regard  to  the  transportation  of  live  stock, 
which  will  be  binding  upon  the  drover  accompanying 
such  stock/ 

^  Sisson  V.  Cleveland  &  Toledo  R.  R.  Co.  et  al.,  14  Mich.  489  (1866). 
In  this  case  Cooley,  J.,  said:  "The  defendants  claim  in  this  Court  that  the 
action  cannot  be  sustained  in  any  event,  because,  by  the  express  terms  of 
the  contract,  they  are  not  to  be  liable  for  delays.  We  do  not  so  read  the 
contract.  As  we  read  this  agreement,  it  refers  to  loss  or  damage  to  the 
party  by  reason  of  injuries  to  the  stock,  caused  by  delay,  etc.,  upon  the 
cars,  and  to  loss  or  damage  by  reason  of  delay  in  loading  or  unload- 
ing, and  has  no  reference  to  other  losses  which  the  delays  of  the  carriers 
may  cause  to  the  shipper.  There  are  good  reasons  for  an  agreement  of 
this  description,  growing  out  of  the  manner  in  which  cattle  are  usually 
transported;  the  owner  or  his  agent  accompanying  and  taking  charge 
of  them,  and  being  on  hand  to  prevent  injuries  of  the  kinds  specified, 
while  no  care  of  the  owner  could  prevent  other  delays,  or  protect 
against  losses  which  might  follow  incidentally  from  other  delays.  The 
stipulation  appears  to  us  carefully  worded  to  cover  such  injuries  and 
losses  as  the  owner  might  guard  against,  while  it  studiously  avoids  in- 
cluding losses  like  the  one  complained  of  here."  To  the  same  effect  are 
Ball  V.  Wabash,  St.  L.  &  P.  R.  Co.,  83  Mo.  574  (1884);  Holsapple  v. 
Rome,W.  &  O.  R.  R.,  86  N.  Y.  275  (1881);  Mynard  v.  Syracuse,  B.  & 
N.  Y.  R.  R.,  71  N.  Y.  180  (1877);   revg.  s.  c  7  Hun,  399  (1876). 

2  Rhodes  V.  Louisville  &  Nashville  R.  R.,  9  Bush  (Ky.),  688  (1873). 
In  this  case  the  special  agreement  provided  that  the  owner  of  the  cattle 
should  assume  all  injury  which  might  be  occasioned  by  their  escaping, 
or  by  fright  or  their  own  viciousness,  as  well  as  any  other  injury  which 
might  happen  to  them  incidental  to  railroad  transportation,  not  caused 
by  the  fraud  or  gross  negligence  of  the  railroad  company.  Held,  that 
while  this  special  contract  devolved  on  the  owner  the  personal  care  of 
the  cattle,  with  the  duties  and  risks  connected  with  it.  it  did  not  exoner- 
ate the  company  from  responsibility  for  damages  resulting  from  a  failure 
to  provide  a  suitable  and  safe  car  for  the  carriage  of  the  cattle. 

^  See  cases  fully  stated  in  Chapter  IX. 

*  The  cases  as  to  reasonable  regulations  are  stated  in  Chapter 
VII.     Dietrich  v.  Penn.  R.  R.,  71  Penn.  432  (1872),  was  the  case  of  a 


I04         THE  MODERN  LAW  OF  CARRIERS. 

The  principles  just  stated  apply  with  equal  force  to 
contracts  for  the  carriage  of  perishable  property. 

The  carrier  is  not  liable  for  injuries  caused  by  its  in- 
trinsic defects.^  But  he  is  bound  to  take  reasonable  means 
to  guard  against  such  injuries,  to  use  special  diligence 
to  avoid  delay  in  its  transportation,^  and  to  give  it  a  pre- 
ference in  transportation  over  non-perishable  goods,  if  he 
is  not  able  to  forward  both  at  once.^ 

And  he  is  to  take  notice  of  any  marks  upon  the  pack- 
age containing  the  goods,  which  indicate  the  character  of 
its  contents.* 

stock  dealer  traveling  on  a  drover's  ticket,  but  not  at  the  time  in  charge 
of  stock. 

^  Evans  v.  Fitchburg  R.  R.,  iii  Mass.  142  (1872). 

'  Michigan  Central  R.  R.  v.  Curtis,  80  111.  324  (1875).  In  this  case 
the  first  carrier  was  held  liable  for  injuries  done  to  plants  by  frost  upon 
a  connecting  line,  it  being  shown  that  the  injury  would  have  been 
avoided  had  the  goods  been  promptly  delivered. 

In  the  transportation  of  meat  it  has  been  held  that  a  provision  in  a 
bill  of  lading  that  a  carrier  should  not  be  liable  for  decay  did  not  pro- 
tect him  from  anything  more  than  the  decay  due  to  the  intrinsic  ten- 
dency of  the  meat,  and  not  from  bad  judgment  of  the  captain  in  per- 
sisting in  his  voyage  after  breaking  his  shaft,  when  by  turning  back  he 
might  have  saved  the  meat.  The  jury  had  found  that  it  was  negligent 
in  the  captain  to  persist  in  continuing  his  voyage  under  the  circum- 
stances.    Sherman  v.  Inman  Steamship  Co.,  26  Hun,  107  (1881). 

Missouri  Pac  Ry.  v.  Cornwall,  70  Texas,  611;  s.  c.  8  S.  W.  Rep. 
312  (1888). 

3  Marshall  v.  N.  Y.  Central  R.  R.,  45  Barb.  (N.  Y.)  502  (1866).  In 
this  case  the  judge  at  Circuit  charged  that  "where  two  kinds  of  prop- 
erty are  delivered  at  the  same  time  by  different  owners,  one  of  which  kind 
is  perishable  and  the  other  not,  preference  is  to  be  given  to  that  which  is 
perishable  in  transportation,  and  if  either  must  wait,  it  must  be  that  which 
is  not  perishable."  This  charge  was  sustained  on  appeal.  The  court 
say:  "The  question  how  the  carrier  was  employed,  and  how  he  used 
and  employed  his  means  of  transportation  during  any  given  period  when 
property  was  delayed,  would  always  be  a  proper  subject  of  inquiry,  and 
that  on  this  inquiry  proof  that  his  means  of  transportation  were  em- 
ployed in  transporting  perishable  property,  in  preference  to  other  prop- 
erty received  at  the  same  time,  would  always  be  held  a  sufficient  excuse 
for  delay." 

*  Hastings  ?'.  Pepper,  n  Pick.  (Mass.)  41  (1831).  In  this  case  the 
box  contained  oil  of  cloves,  and  the  mark  held  sufficient  to  notify  the 
carrier  was:  "  Glass— with  care  — this  side  up."  Held,  the  carrier  was 
bound  to  so  carry  it.    See  American  Ex.  Co.  v.  Perkins,  42  111.  458  (1867). 


LIVE   STOCK   CONTRACTS — INTRINSIC   DEFECTS.       105 

It  has  even  been  intimated  by  one  learned  judge  that 
the  carrier  is  not  bound  to  receive  fragile  goods  except 
under  a  contract  limiting  his  common-law  liability.  And 
in  Michigan,  Kentucky  and  Tennessee  it  seems  to  be  the 
rule  that  a  railroad  company  is  not,  at  common  law,  a  car- 
rier of  live  stock,  and  may  lawfully  refuse  to  receive  it  for 
transportation,  and  that  it  makes  itself  liable  as  common 
carrier  for  that  species  of  property  only  by  assuming  to 
carry  it  as  such.^ 

1  Mich.  S.  &  N.  Ind.  R.  R.  Co.  v.  McDonongh,  21  Mich.  165  (1870); 
Lake  Shore  &  Mich.  S.  R.  R.  Co.  v.  Perkins,  25  Mich.  329  (1872); 
Baker  v.  Louisville  &  N.  R.  R.  Co.,  10  Lea  (Tenn.),  304  (1882);  Louis- 
ville, C.  &  L.  R.  R.  Co.  V.  Hedger,  9  Bush  (Ky.),  645  (1873).  In  People 
V.  Babcock,  16  Hun  (N.  Y.),  313  (1878),  a  mandamus  asked  to  compel  a 
carrier  to  receive  live  stock  for  transportation  under  the  common -law  lia- 
bility of  common  carriers,  was  refused  by  the  Supreme  Court  of  New 
York. 

In  the  Perkins  case  the  court  say  (p.  335):  "It  must  be  admitted  as 
settled  law  that  where  one  has  already  assumed  the  character  of  com- 
mon carrier  he  may,  in  special  cases,  by  express  agreement,  exclude 
particularly  common-law  duties  and  liabilities,  and  that  when  this  is 
done  his  common-law  character  as  common  carrier  will  be  cut  short,  at 
least  to  the  extent  of  the  variation  made  by  the  agreement ;  and  if  such 
is  the  consequence  of  an  agreement  limiting  his  liability,  by  one  already 
a  common  carrier,  it  seems  reasonable  to  conclude  that  one  who  has 
never  assumed  or  offered  to  carry  chattels  of  a  certain  class  except  up- 
on special  terms  exempting  him  from  all  the  important  duties  and  lia- 
bilities of  the  common  carrier,  cannot  be  classed  among  common  car- 
riers of  property  of  that  kind,  or  be  made  answerable  in  the  character 
of  a  common  carrier  as  to  such  property." 

Where  a  railroad  company  has  been  accustomed  to  receive  and  carry 
live  stock  subject  to  conditions,  it  is,  subject  to  those  conditions,  a  car- 
rier of  live  stock,  and  bound  to  furnish  cars ;  and  if  on  any  emergency 
it  cannot  do  so,  it  is  bound  to  be  diligent  in  notifying  a  proposed  ship- 
per. Ayres  v.  Chicago  &  N.  W.  Ry.,  71  Wis.  372;  s.  c.  37  N.  W.  Rep. 
432  (1888). 

In  East  Tenn.  &  Ga.  R.  R.  v.  Whittle,  27  Geo.  535  (1859),  it  was 
held  that  if  a  railroad  company  chartered  cars  to  the  owner  of  live 
stock  for  its  transportation,  he  could  not  claim  that  the  company  was  a 
common  carrier,  but  that  he  could  sue  on  an  implied  agreement  that 
the  cars  were  "  in  good  condition  and  substantial,"  and  would  be  car- 
ried safely  and  in  the  usual  time  to  their  destination,  and  that  oppor- 
tunity for  attending  to  the  stock  would  be  given. 

In  a  similar  case  it  was  held  that  the  railroad  company  "stood  in 
the  relation  of  the  common  carrier"  to  the  owner  of  the  live  stock,  and 
this  is  believed  to  be  the  better  rule.  Peters  v.  New  Orleans,  J.  &  G.  N. 
R.  R.,  16  La.  Ann.  222  (1861). 


106         THE  MODERN  LAW  OF  CARRIERS. 

It  is  not  easy  to  reconcile  the  cases  which  have  been 
referred  to.  But  there  is  a  distinction  between  them 
which  may  be  noted.  In  those  stated  at  the  beginning  of 
the  chapter  it  either  appeared,  or  it  was  assumed  by  the 
court,  that  the  corporation  sued  had  held  itself  out  as  a 
carrier  of  live  stock  for  all  who  should  choose  to  employ 
it  for  that  purpose.^  In  the  cases  in  Michigan,  Kentucky 
and  Tennessee  the  attention  of  the  court  appears  rather 
to  be  directed  to  the  proposition,  that  no  person  is  bound 
to  be  a  common  carrier  of  everything  that  offers,  but  may 
lawfully  hold  itself  out  as  a  common  carrier  of  one  kind 
of  freight  and  not  of  another.  Many  railroads,  in  cities, 
are  carriers  only  of  passengers  and  mails.  And  in  the 
future  it  is  likely  that  some  ocean  steamers  may  in  like 
manner  limit  their  employment. 

SECTION  IV. 

THE   CARRIER'S   LIABILITY   AS  AFFECTED  BY  THE  QUESTION  OF 

CONSIDERATION. 

It  was  at  one  time  contended  with  much  earnestness 
on  behalf  of  the  carrier  that  he  was  liable  only  upon  his 
contract,  and  consequently  that  the  law  imposed  no  liability 
upon  him  in  the  case  of  a  gratuitous  undertaking  to  carry 
a  passenger.  But  the  courts  finally  held  otherwise,  and 
it  is  now  well  settled  that  the  carrier  owes  a  duty  to  all 
upon  his  vehicle,  independent  of  contract,  and  that  the 
breach  of  this  duty  is  negligence  for  which  he  is  liable.*^ 

^  In  Moulton  z/.  St.  Paul,  Minn.  &  Man.  R.  Co.,  31  Minn.  85,  87 
(1883),  the  court  say:  "A  railroad  company  which  undertakes  to  trans- 
port live  stock  for  hire,  for  such  persons  as  choose  to  employ  it,  assumes 
the  relation  of  a  common  carrier,  and  becomes  chargeable  with  the 
duties  and  obligations  which  are  incident  to  that  relation."  See  Maslin 
V.  Baltimore  &  Ohio  R.  R.,  14  W.  Va.  180  (1878);  Coup  v.  Wabash,  St. 
L.  &  P.  R.  Co.,  56  Mich.  1 1 1  ( 1 885).  This  was  a  contract  for  a  menage- 
rie train.  It  was  held  that  the  railroad  company,  in  respect  to  this  train, 
was  not  a  common  carrier. 

2  Philadelphia  &  Reading  R.  R.  v.  Derby,  14  How.  U.  S.  467,  485 
(1852);   VVaterbury  v.   N.  Y.  Central  &  H.  R.  R.  R.  Co.,  17  Fed.  Rep. 


LIABILITY   AS   AFFECTED   BY   CONSIDERATION.        107 

In  the  case  of  drovers  accompanying  live-stock  and 
receiving  passes  for  this  purpose,  and  of  mail  agents  who 

671  (1883).  The  note  to  this  contains  an  admirable  collection  of  au- 
thorities. Keep  V.  Indianapolis  &  St.  L  R.  R.,  3  McCrary,  208, 302  (1881 
and  1882);  Lemon  z'.  Chanslor,  68  Mo.  340  (1878);  Evans  z'.  St.  Louis,  L 
M.  &  S.  R.  Co.,  1 1  Mo.  App.  463  (1882);  New  Orleans,  J.  &  G.  N.  R.  R.  v. 
Hurst,  36  Miss.  660  (1859);  Hurt  v.  Southern  R.  R.  Co.,  40  Miss-  391 
(1866);  Nolton  V.  Western  R.  R.,  15  N.  Y.  444  (1857);  see  Saltonstall  z/. 
Stockton,  Taney  Dec.  11  (1838);  Buffalo,  &c.  R.  R.  v.  O'Hara,  11  Am. 
Law  Record,  554,  Supreme  Court  Penn.  (1882);  Camden  &  A.  R.  R.  v^ 
Bausch,  6  Central  Rep.  121,  Supreme  Court  Penn.  (1887);  Heirn  v.  M'- 
Caughan,  32  Miss.  17  (1856).  In  Cleveland  v.  N.  J.  Steamboat  Co.,  68 
N.  Y.  306  (1877),  the  court  put  the  liability  of  the  carrier  on  the  ground 
that  the  person  injured  in  that  case  was  liable  for  the  payment  of  his 
passage-money,  though  he  had  not  actually  paid  it.  See  Jones  v.  Sims, 
9  Porter  (Ala.),  236  (1839).  In  Gillenwater  v.  Madison  &  Indianapolis 
R.  R.,  5  Ind.  339  (1854),  the  defendants  employed  plaintiff  to  frame 
and  build  a  bridge  on  their  road,  across  a  creek,  and  while  he  was  en- 
gaged in  the  work  directed  him  to  proceed  in  their  cars  to  Greenwood, 
and  assist  in  loading  timbers  for  the  bridge.  While  on  their  cars,  as  di- 
rected, through  the  negligence  of  defendant's  servants  the  train  was  de- 
railed, and  plaintiff  was  injured.  Held  that  he  was  a  passenger,  and 
that  the  defendant  was  liable  for  the  injury.  In  Doran  v.  East  River 
Ferry  Company,  3  Lansing  (N.  Y.),  105  (1870),  the  plaintiff  paid  ferri- 
age for  one  trip,  on  which  she  was  safely  carried.  She  remained  on  board 
during  several  other  trips.  No  additional  ferriage  was  paid  by  or  asked 
from  her.  Held  that  she  could  recover  for  injuries  caused  by  defend- 
ant's negligence  while  the  boat  was  entering  the  ferry-slip  on  the  last  of 
these  trips. 

In  these  cases  it  may  be  said  that  there  was  either  a  consideration, 
or  a  liability,  to  pay  fare,  which  made  the  contract  more  than  gratuitous. 
But  in  Mobile  &  Ohio  R.  R.  v.  Hopkins,  41  Ala.  486  (1868),  the  court 
held  that  a  carrier  was  liable  for  the  loss  of  baggage  caused  by  the  neg- 
ligence of  its  servants,  although  the  owner  was  riding  on  a  free  pass, 
which  contained  a  stipulation  that  the  carrier  should  not  be  liable  under 
any  circumstances,  whether  of  the  negligence  of  his  agents  or  otherwise, 
for  any  injury  to  the  person  or  property.  Griswold  v.  N.  Y.  &  N.  Eng. 
R.  R.  Co.,  53  Conn.  371  (1885),  s.  c,  55  Am.  Rep.  115,  held  that  un- 
der such  circumstances  the  carrier  was  not  liable  for  the  negligence  of 
its  servants  which  caused  the  death  of  the  person  using  the  pass.  s.  p., 
Kinney  v.  Central  R.  R.,  34  N.  J.  (Law),  513  (1869).  In  many  of  the 
negligence  cases  cited  in  Chapter  IV  this  question  of  consideration  is 
discussed.  The  courts  that  have  held  contracts  exempting  a  carrier  from 
liability  for  the  negligence  of  his  servants  to  be  void,  have  generally 
treated  the  element  of  consideration  as  immaterial.  See  U.  S.  Express. 
Co.  V.  Bachman,  2  Cin.  Super.  Ct.  Rep.  (Ohio),  251  (1872);  Bissellz'.  N.  Y, 
Central  R.  R.,  25  N.  Y.  442  (1862);  revg.  s.  c.  29  Barb.  602  (1859).  On 
the  other  hand,  in  Orange  Co.  Bank  v.  Brown,  9  Wend.  85  (1832),  some 
of  the  old  cases  are  cited  with  apparent  approval  in  which  it  is  said  that 


Io8  THE   MODERN   LAW   OF   CARRIERS. 

accompany  the  mails,  but  pay  no  money  for  their  transpor- 
tation, it  is  believed  that  the  consideration  paid  for  trans- 
porting, in  the  one  case  the  stock  and  in  the  other  case 
the  mails,  would  be  sufficient  even  if  the  liability  rested  on 
this  ground  only.^     An  express  agreement  that  the  drover 


the  carrier's  liability  depends  upon  the  consideration  paid  him.  But  in 
Carroll  v.  Staten  I.  R.  R.  Co ,  58  N.  Y.  126  (1874),  the  court  say  that 
the  duty  imposed  by  law  upon  the  carrier  of  passengers  to  carry 
them  safely,  as  far  as  human  skill  and  foresight  can  go,  exists  inde- 
pendently of  contract.  For  a  negligent  injury  to  a  passenger  an  action 
lies  against  the  carrier,  although  there  be  no  contract,  and  the  service 
he  is  rendering  is  gratuitous;  and,  whether  the  action  is  brought  upon 
contract  or  for  failure  to  perform  it,  the  liability  is  the  same.  s.  p.,  Lit- 
tlejohn  V.  Fitchburg  R.  R.,  2  Lawyers'  Rep.  Ann.  (Mass.)  502  (1889). 

But  a  reduction  in  the  rate  of  fare  is  a  valid  consideration  for  cer- 
tain limitations  in  the  contract  to  carry,  as  the  limit  to  the  length  of 
time  in  which  a  passenger  ticket  is  good.  Pennington  v.  Phila.,  W.  & 
B.  R.  R.  Co.,  62  Md.  95  (1883);  Johnson  v.  Same,  63  Md.  106  (1884). 
In  Higgins  v.  N.  O.,  M.  &  C.  R.  R.  Co.,  28  La.  Ann.  133  (1876),  a  rail- 
road was  held  not  liable,  to  a  newsman  traveling  under  a  free  pass,  for 
injuries  arising  from  causes  not  amounting  to  fraudulent,  willful  or  reck- 
less conduct  of  the  defendant. 

And  in  Annas  v.  The  Milwaukee  &  N.  R.  R.,  67  Wise.  46  (1886),  the 
court  says,  referring  to  the  rule  of  the  Federal  and  other  Courts,  that 
the  carrier  cannot  lawfully  limit  his  liability  for  negligence: 

"  It  will  be  found,  by  an  examination  of  the  large  number  of  cases  in 
which  this  rule  is  held,  that  they  are  cases  arising  out  of  the  carriage  of 
goods  for  hire,  or  where  the  carriage  of  the  passenger  was  for  a  con- 
sideration, received  either  directly  or  indirectly."  And  the  court  found 
only  four  cases — and  those  in  State  courts,  where  the  rule  was  applied 
to  a  gratuitous  passenger. 

In  McCall  v.  Brock,  5  Strob.  (S.  C)  119  (1850),  the  Court  says 
that  the  carrier  may  except,  by  notice  or  stipulation,  every  risk  incident 
to  his  undertaking.  If  he  make  no  stipulation,  he  gets  a  higher  rate 
of  freight  as  insurance.  In  such  a  case  tlie  shipper  is  not  bound  to 
show  negligence. 

In  Way  v.  Chicago,  R.  I.  &  P.  R.  Co.,  73  Iowa,  463 ;  s.  c.  35  N.  W.  Rep. 
525  (1887),  it  was  held  that  although  plaintiff  was  wrongfully  upon  the 
car  under  another  person's  pass,  the  carrier  was  liable  for  so  recklessly 
and  negligently  moving  its  cars  that  an  injury  might  have  been  expected. 

In  East  Line  &  R.  R.  R.  R.  v.  Lee,  71  Texas,  538;  s.  c.  9  S.  W. 
Rep.  605  (1888),  the  owners  of  a  leased  line,  which  was  operated  by  a 
lessee,  were  held  liable  for  injuries  to  a  passenger  on  a  ticket  issued 
by  the  lessee,  which  were  caused  by  the  officers  of  the  latter.  As  to 
Pullman  Car  Companies,  see  Chap.  IV,  sect.  2,  p.  90,  note  i,  ante. 

^  Railroad  Co.  v.  Lockwood,  17  Wall.  357  (1873);  01"'io  "-^  Miss.  R. 
Co.  V.  Selby,  47  Ind.  471,  492  (1874);  Ohio  &  Miss.  R.  Co.  v.  Nickless 


LIABILITY   AS   AFFECTED   BY   CONSIDERATION.        IO9 

employed  by  the  shipper  shall  be  considered  as  an  em- 
ploye of  the  railroad  company  is  an  evasion  of  the  rule 

71  Ind.  271  (1880);  Missouri  Pac.  R.  Co.  v.  Ivey,  71  Texas.  409;  s.  c.^ 
9  S.  W.  Rep.  346  (1888);  Hammond  v.  North  Eastern  R.  R.  Co.,  6 
So.  Car.  130  (1874);  Cleveland,  P.  &  A.  R.  R.  v.  Curran,  19  Ohio  St. 
I  (1869). 

In  the  latter  case  the  carrier,  in  making  a  contract  for  the  shipment 
of  live  stock  at  a  specified  rate,  delivered  to  the  shipper,  without  any- 
additional  consideration,  a  "drover's  pass,"  entitling  him  to  go  with  his 
stock,  and  to  return  on  a  passenger  train.  In  the  written  agreement  for 
transporting  the  stock,  the  holder  of  the  ticket  was  referred  to  as  "  rid- 
ing free  to  take  charge  of  the  stock."  On  the  pass  was  an  indorsement 
that  it  was  a  "  free  ticket,"  and  that  the  holder  assumed  all  risk  of  acci- 
dent, and  agreed  that  the  company  should  not  be  liable  under  any  cir- 
cumstances, whether  of  negligence  by  the  company's  servants  or  other- 
wise, for  any  injury  to  his  person  or  property,  and  that  he  would  not 
consider  the  company  as  common  carriers,  or  liable  as  such.  Held,  that 
the  pass  and  the  agreement  for  transporting  the  stock  constituted,  to- 
gether, a  single  contract,  and  that  the  holder,  both  while  going  with  his 
stock  and  returning,  was  not  a  gratuitous,  but  a  paying  passenger.  The 
stipulation  exempting  the  company  from  liability  for  negligence  was 
held  to  constitute  no  defense  to  an  action  brought  by  the  shipper  for 
personal  injury,  caused  by  the  negligence  of  servants  of  the  company  in 
the  management  of  its  trains.  Penn.  R.  R.  Co.  v.  Henderson,  51  Penn. 
315  (1865);  Buffalo,  &c.  R.  R.  Co.  v.  O'Hara,  11  Am.  L.  Record  (Penn.), 
554(1882). 

In  Bissell  v.  N.  Y.  Central  R.  R.,  25  N.  Y.  442  (1862),  it  was  held 
that  the  provisions  of  the  general  Railroad  Act  of  New  York,  Laws 
1850,  chap.  140,  sect.  36,  did  not  increase  the  carrier's  liability,  nor 
diminish  his  right  to  contract  for  exemption.  In  this  case  the  proposi- 
tion stated  in  the  text  was  discussed,  but  not  decided.  The  court  held 
that  a  reduced  rate  of  freight  on  cattle,  and  the  carriage  of  a  drover 
without  charge  additional  to  the  freight,  was  a  sufficient  consideration 
for  an  agreement  by  the  drover  to  ride  at  his  "  own  risk  of  personal  in- 
jury from  whatever  cause." 

Bankard  v.  Baltimore  &  O.  R.  R.  Co.,  34  Md.  197  (1870),  held  that 
a  reduction  in  freight  was  a  good  consideration  for  an  agreement  that  the 
carrier  should  only  be  liable  for  injury  to  cattle  caused  by  gross  negli- 
gence. 

Where  the  contract  secured  exemption  from  certain  risks  in  consid- 
eration of  a  reduced  rate  of  freight,  the  shipper  was  allowed  to  intro- 
duce evidence  that  the  rate  was  not,  in  fact,  reduced,  and  it  was  held 
that  the  representation,  if  false,  constituted  a  fraud.  McFadden  v.  Mo. 
Pacific  Ry.  Co.,  92  Mo.  343  (1887). 

When  an  express  agent  is  allowed  to  ride  free,  a  contract  of  exemp- 
tion against  the  negligence  of  the  carrier's  employees  is  valid  in  Massa- 
chusetts; Bates  z^.  Old  Colony  R.  Co.,  147  Mass.  255;  s.  c  17  North  Ea. 
Rep.  633  (1888);  distinguishing  Railway  Co.  v.  Lockwood,  on  the  ground 
that  the  injury  might  not  have  happened  to  a  passenger. 

In  California  it  is  held,  that  in  the  case  of  an  express  agent  on  the 


no  THE    MODERN    LAW   OF   CARRIERS. 

forbidding  exemption  from  negligence,  and  is  therefore 
void/ 

In  like  manner  the  price  that  a  passenger  pays  for  his 
ticliet  is  the  consideration  for  the  carriage  of  his  baggage 
as  well  as  his  person.^ 

It  will  be  found  that  the  same  courts  which  hold  a 
contract  with  a  drover  or  passenger,  limiting  the  carrier's 
liability  fornegligence,  to  be  valid,  adopt  substantially  the 
same  rule  whether  there  be  express  consideration  for  the 
contract  of  carriage  or  not.  On  the  other  hand  most  of 
the  courts  which  hold  such  contract  void  in  the  one  case, 
hold  it  to  be  equally  void  in  the  other.  To  this,  however, 
there  are  some  exceptions. '^ 

train  paying  no  fare,  the  consideration  paid  for  carrying  the  express 
packages  would  be  sufficient.  Yeomans  v.  Contra  Costa  S.  N.  Co.,  44 
Cal.  71  (1872). 

*  Missouri  Pac  R.  Co.  v.  Ivey,  71  Texas,  409;  s.  c.  9  S.W.  Rep.  346 
(i888). 

2  Wilson  V.  Grand  Trunk  R.,  56  Me.  60  (1868).  In  this  case  it 
was  held  that  baggage,  forwarded  by  the  passenger's  direction,  subse- 
quently to  his  journey,  in  the  absence  of  any  special  agreement  with  or 
negligence  on  the  part  of  the  carrier  in  not  forwarding  it  before,  must 
pay  freight  like  any  article  of  merchandise.  In  Pierce  v.  Milwaukee  & 
St.  Paul  R.  Co..  23  Wis.  387  (1868),  the  goods  transported  were  empty 
bags.  The  contract  provided  that  they  should  be  transported  free. 
Freight  had  been  paid  for  their  transportation  when  full,  and  it  was 
held  that  this  was  really  a  consideration  for  the  agreement  to  return  the 
empty  bags  without  additional  charge. 

'  In  Montana  it  is  held  that  although  a  common  carrier  is  held  to 
the  highest  degree  of  care  towards  a  passenger  who  pays  his  fare,  the 
law  only  requires  ordinary  care  towards  a  "dead-head"  or  trespasser. 
Higley  v.  Gilmer,  3  Montana,  90  (1878);  s.  c.  35  Am.  Rep.  450. 

In  Gray  v.  Missouri  River  Packet  Co.,  64  Mo.  47  (1876),  it  is  held 
that  a  carrier  who  transports  property  gratuitously  is  liable  for  injury 
thereto  only  in  cases  of  gross  negligence;  but  that,  in  the  absence  of  an 
express  agreement  to  the  contrary,  a  promise  to  pay  a  reasonable  sum 
for  freight  arises  by  implication. 

In  New  Jersey  it  is  held  the  carrier  may  exempt  itself  from  all  lia- 
bility where  the  passenger  is  carried  as  a  mere  gratuity.  Kinney  v. 
Central  R.  R.  Co.  of  New  J.,  34  N.  J.  Law,  513  (1869). 

In  Camden  &  A.  R.  R.  Co.  v.  Bausch,  6  Cent.  Rep.  121  (1887),  the 
Pennsylvania  Supreme  Court,  by  an  equally  divided  court,  affirmed  a  de- 
cision of  the  Common  Pleas  that  the  New  Jersey  rule  was  otherwise  if, 
in  fact,  there  was  a  consideration  for  the  carriage  of  the  passenger.     In 


LIABILITY   AS   AFFECTED   BY   CONSIDERATION.        Ill 

The  rule  just  stated  as  to  the  carrier's  liability  has 
been  so  applied  as  to  charge  a  carrier  for  the  loss  of  goods 
carried  over  its  railroad  by  an  express  company/  and  for 
the  loss  of  goods  received  by  it  for  transportation  when  its 
line  was  in  part  under  the  direction  and  control  of  the  mil- 
itary authorities,  provided  the  carrier  accepted  and  agreed 
to  carry  the  goods, ^  and  for  the  loss  of  goods  received  by 
it  for  transportation*  and  destroyed  by  fire  at  a  station  on 
a  part  of  its  line  leased  to  another  company.^ 

The  doctrine  of  the  cases  just  cited  should  not,  how- 
ever, be  extended.  The  decisions  were  probably  right,  but 
the  facts  in  each  case  were  peculiar.  The  proposition  is 
not  tenable  that  a  carrier  by  land  is  liable  for  the  loss  of 
all  goods  carried  over  his  line,  even  though  they  be  in 
his  own  vehicle.  No  one  would  claim  that  the  owner  of  a 
ship,  who  charters  her  for  a  voyage,  is  liable  for  injuries 
caused  by  the  negligence  of  a  master  employed,  paid  and 
directed   exclusively   by   the   charterer.      And  the  same 

the  Federal  Courts  it  is  settled  that  a  person  who  rides  on  a  free  pass  at 
the  request  and  for  the  benefit  of  the  carrier,  can  recover  damages  for 
the  carrier's  negligence,  notwithstanding  a  stipulation  to  the  contrary. 
Grand  Trunk  Ry.  v.  Stevens,  95  U.  S.  655  (1877). 

^  Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174  (1876); 
Hooper  v.  Wells,  27  Cal.  11  (1864);  Langworthy  v.  N.  Y.  &  Harlem  R. 
R.,  2  E.  D.  Smith  (N.  ¥.),  195  (1853).  In  this  case  there  was  a  private 
arrangement  between  the  railroad  and  express  companies  for  the  trans- 
portation of  light  freight,  of  which  the  public  had  no  notice,  and  the 
goods  in  question  were  delivered  at  the  cars;  whether  to  the  express 
agent  or  to  the  railroad  baggage-master,  was  not  clearly  stated  in  the 
testimony.     Held  immaterial. 

2  Illinois  Central  R.  R.  Co.  v.  Ashmead,  58  111.  487  (1871);  dis- 
tinguished from  111.  Central  R.  R.  Co.  v.  McClellan,  54  111.  58  (1870); 
and  see  Chap.  XIV,  sect.  4,  post. 

'  Langley  v.  Bostoh  &  Maine  R.  R.,  10  Gray  (Mass.),  103  (1857). 
And  in  this  case  and  the  Ashmead  case,  cited  in  the  previous  note,  it 
may  fairly  be  claimed  that  the  carrier  was  liable  upon  his  contract,  and 
that,  had  it  not  been  for  this,  there  would  have  been  no  liability.  The 
lessee  of  a  railroad  is  liable  in  case  of  injury  to  a  person  at  a  crossing, 
even  though  the  ultimate  cause  of  the  injury  was  a  defect  in  the  origi- 
nal construction  of  the  road.  It  knowingly  maintains  a  nuisance.  Was- 
mer  v.  Delaware,  L.  &  W.  R.  R.,  80  N.  Y.  212  (1880). 


112  THE    MODERN    LAW   OF   CARRIERS. 

principle  must  apply  on  land.  Thus  it  was  held^  that  the 
owner  of  goods  transported  on  cars  chartered  by  the  owner 
of  them,  a  railroad  company,  to  an  individual  cannot  re- 
cover from  the  company  for  injuries  to  the  goods  caused 
by  the  negligent  stowage  of  the  charterer.  And  a  re- 
ceiver of  a  railroad  in  one  State,  who  with  others  takes  a 
lease  of  a  connecting  railroad  in  another  State,  and  ope- 
rates it,  is  liable  for  negligence  of  persons  employed  by  him 
to  operate  the  road.^  On  the  other  hand  where  a  railroad 
is  operated  by  a  receiver  or  assignee  in  bankruptcy  the 
corporation  to  which  it  belongs  is  not  liable  for  the  neg-^ 
ligence  of  the  servants  of  the  assignee  or  the  receiver.^ 

In  the  long  controversy  as  to  the  validity  of  contracts 
for  the  exemption  of  the  carrier  from  liability  for  the  neg- 
ligence of  his  servants,  to  which  reference  has  so  often 
been  had,  the  question  of  the  consideration  for  such  ex- 
emption has  been  frequently  considered.  If  it  can  be 
shown  that  there  was  no  consideration  for  such  a  contract, 
it  will  not  be  valid.  For  example,  in  a  case  where  a  rail- 
road was  bound  by  previous  contract  with  the  government 
to  carry  a  mail  agent  free  of  charge,  it  was  held  that  a 
contract  between  him  and  the  carrier  that  the  latter  should 
not  be  held  liable  for  damage  caused  by  the  negligence  of 
its  servants,  was  void  for  want  of  consideration.* 

On  the  other  hand  it  has  been  held  that  the  carrier  is 
not  liable  for  the  non-delivery  of  goods  which  he  has 
agreed  to  carry  gratuitously,^  but  that  if  the  agreement 
for  carriage  is  silent  as  to  compensation,  an  agreement  to 
pay  a  reasonable  sum  for  the  same  will  be  implied.^ 

^  East  Tenn.,  Va.  &  G.  R.  R.  v.  Whittle,  27  Ga.  535  (1859). 

*  Kain  v.  Smith,  80  N.  Y.  458  (1880);  Rogers  v.  Wheeler,  43  N.  Y. 
598  (1871);  Metz  V.  Buffalo,  C.  &  P.  R.  R.,  58  N.  Y.  61  (1874). 

^  In  Ohio  &  Miss.  R.  Co.  v.  Nickless,  71  Ind.  271  (1880),  the  injury- 
complained  of  occurred  before  the  appointment  of  the  receiver.  The 
action  was  brought  afterwards.     Held  that  the  action  was  sustainable. 

*  Seyboldt  v.  N.  Y.,  L.  E.  &  W   R.  R.  Co.,  95  N.  Y.  562  (1884). 
'  Chouteau  v.  Steamboat  St.  Anthony,  16  Mo.  216  (1852). 

"  Kirtland  v.  Montgomery,  i  Swan  (Tenn.),  452  (1852). 


WABILITY   AS   AFFECTED   BY   CONSIDERATION.        II3 

The  further  consideration  of  the  question  as  to  the 
extent  of  the  carrier's  liability  when  he  undertakes  to 
transport  passengers  or  goods  free  of  charge  does  not  fall 
within  the  scope  of  this  work.  The  reader  is  referred  to 
the  cases  on  the  subject,  which  are  cited  in  the  note.^ 

*  Passengers. — Rose  v.  Des  Moines  Valley  R.  R.,  39  Iowa,  246  (1874); 
Jacobus  V.  St.  Paul  &  Chicago  R.  Co.,  20  Minn.  125  (1873);  Blair  v- 
Erie  R.  Co.,  66  N.  Y.  313  (1876);  Hammond  v.  N.  E.  R.  R.,  6  Rich. 
(S.  C)  130  (1874);   The  New  World  v.  King,  16  How.  U.  S.  Rep.  469 

(1853)-  .  ,         ^  . 

Goods. — Boyd  v.  Estis,  11  La.  Ann.  704  (1856);  Knox  v.  Rives,  14 
Ala.  249  (1848);  Flint  &  Marquette  R.  Co.  z'.  Weir,  37  Mich,  m  (1877). 

Cases  of  Implied  Compensation. — Russ  z;.  The  War  Eagle,  14  Iowa, 
363  (1862);  Gray  v.  Missouri  R.  Packet  Co.,  64  Mo.  47  (1876). 

Where  the  liability  is  statutory,  as  in  cases  where  death  results,  the 
liability  is  limited  by  statute.  Under  the  Massachusetts  statute,  there 
must  be  culpability  on  the  part  of  the  carrier  in  order  to  give  right  of 
action  when  death  ensues.  Littlejohn  v.  Fitchburg  R.  R.,  2  Lawyers' 
Rep.  Ann.  502  (Mass.,  1889). 


CHAPTER  V. 

LIMITATIONS   AS  TO   AMOUNT   OF   LIABILITY. 

The  courts  have  shown  more  liberality  towards  car- 
riers, in  their  attempts  to  limit  the  amount  for  which  they 
can  be  made  liable,  than  in  dealing  with  any  other  limita- 
tions which  they  have  sought  to  place  upon  their  com- 
mon-law liability.  The  earlier  cases  maintained  the  car- 
rier's right  to  limit  the  amount  of  his  liability  by  a  sim- 
ple notice.^  Judge  Cowen  recognized  this  right  in  his 
opinion  delivered  in  the  leading  case  in  New  York,^  in 
which  it  was  held  that  a  carrier  could  not,  even  by  express 
contract,  restrict  in  other  respects  his  common-law  lia- 
bility. 

Subsequent  cases  have  not  generally  admitted  that  the 
amount  of  the  carrier's  liability  could  be  limited  by  notice 
to  the  shipper.^     But  almost  all  agree  that  such  a  limita- 

1  Harris  v.  Packwood,  3  Taunt.  264  (1810);  Batson  v.  Donovan,  4 
B.  &  Aid.  21  (1820). 

Lord  Ellenborough  said,  in  Maying  v.  Todd,  i  Starkie,  72  (1815): 
"  Since  they  can  limit  it  to  a  particular  sum,  I  think  they  may  exclude 
it  altogether." 

"^  Cole  V.  Goodwin,  19  Wendell,  251  (1838).  In  Hollister  v.  Nowlen, 
19  Wend.  234  (1838),  Judge  Bronson  recognized  this  distinction.  He 
quotes  all  the  old  cases  as  to  notice.  It  was  held,  however,  that  notice 
that  the  carrier  would  not  be  liable  at  all,  was  ineffective  to  limit  his  li- 
ability as  to  amount.  Judge  Nelson's  opinion  in  Orange  Co.  Bank  v. 
Brown,  9  Wend.  85  (1832),  contains  a  dictum  to  the  same  effect  as  that 
of  Judge  Cowen's,  stated  in  the  text. 

'  Southern  Express  Co.  v.  Armstead,  50  Ala.  350  (1873).  In  Illi- 
nois and  New  Hampshire  the  distinction  is  adhered  to.  Moses  v.  Boston 
&  Me.  R.  R.,  4  Foster  (24  N.  H.),  71  (185 1);  Western  Trans.  Co.  v.  New- 
hall,  24  111.  466  (i860).  In  Oppenheimer  v.  U.  S.  Ex.  Co.,  69  111.  62  (1873), 
the  court  say:  "In  respect  to  those  duties  designed  simply  to  enjoin 
good  faith  and  fair  dealing,  a  notice  alone,  if  brought  home  to  the 
knowledge  of  the  owner  of  the  property  delivered  for  carriage,  will  be 
sufficient."     In  that  case  the  appearance  of  the  box  did  not  indicate 


LIMITATIONS   AS   TO   AMOUNT   OF   LIABILITY.         II 5 

tion  is  valid  if  agreed  to  by  him/  even  though  injury 

that  its  contents  were  valuable,  and  the  receipt  delivered  by  the  carrier 
to  the  shipper  contained  a  clause  limiting  the  liability  as  to  amount  if 
the  value  was  not  disclosed,  and  the  court  held  that  it  was  not  neces- 
sary to  introduce  affirmative  evidence  of  the  shipper's  assent.  In  other 
words,  they  treated  the  receipt  as  a  notice.  In  Illinois  affirmative  evi- 
dence of  assent  by  the  shipper,  to  the  terms  of  a  carrier's  contract,  is 
necessary.     See  Ch.  X,  sect.  2. 

The  statement  in  the  text  is  based  upon  the  numerous  decisions 
cited  in  the  introduction  to  Chapter  IV,  to  the  effect  that  the  carrier's 
liability  can  only  be  limited  by  contract,  and  not  by  notice.  Yet,  even 
so  late  as  1878,  there  seems  to  be  a  recognition  by  the  New  York  Court 
of  Appeals  of  the  earlier  rule,  allowing  a  notice  brought  home  to  the 
shipper  to  limit  the  amount  of  the  carrier's  liability.  Baldwin  v.  Liver- 
pool &  G.  W.  S.  Co.,  74  N.  Y.  125  (1878).  See,  also,  the  Fraloff  case, 
post,  p.  119,  note  r.  It  is  true  that  the  observations  on  this  subject  in  each 
of  these  cases  are  dicta,  but  they  appear  to  have  met  the  concurrence  of 
the  court,  and  it  may  be  that,  if  the  question  should  hereafter  arise, 
these  dicta  will  be  the  rule  of  decision. 

And  the  carrier's  liability  certainly  cannot  be  limited  by  a  rule  or 
custom  without  notice  to  the  shipper.  McCune  v.  Burlington,  C.  R.  & 
N.  R.  Co.,  52  Iowa,  600;  s.  c  3  N.W.  Rep.  615  (1879). 

^  Boorman  v.  American  Ex.  Co.,  21  Wis.  152  (1866);  Fay  t^.  The 
New  World,  i  Cal.  348  (1850).  In  this  latter  case  the  agreement  was 
that  no  compensation  should  be  paid  and  no  responsibility  incurred. 
There  was  no  negligence.  The  agreement  was  held  valid.  Newstadt  v. 
Adams,  5  Duer,  43  (1855);  Moriarty  v.  Harnden's  Ex.,  i  Daly,  227 
(1862);  Baxendale  v.  Great  E  R.  Co.,  L.  R.  4  Q  B.  244  (1869);  Brehme  v. 
Adams  Ex.  Co.,  25  Md  328  (1866);  Lawrence  v.  N.  Y.,  P.  &  B.  R.  R.,  36 
Conn.  63  (1869);  Belger  ?/.  Dinsmore,  51  N.  Y.  166  (1872);  Elkins  v^ 
Empire  Trans.  Co.,  81  Penn.  (32  P.  F.  Smith),  315  (1876);  Chicago,  R. 
I.  &  P.  R.  R.  V.  Harmon,  17  111.  App.  640  (1885);  Brown  v.  Wabash,  St. 
L.  &  P.  R.  Co.,  18  Mo.  App.  568  {1885).  In  M'Cance  v.  London  &  N. 
W.  R.Co.,  3  H.  &  C.  343  (1864);  s.  c.  Exchq.  Cham.,  34  L.  J.  (Exchq.) 
39,  the  decision  was  put  on  the  ground  that  both  parties  had  assumed  to 
act  on  an  agreed  state  of  facts,  to  wit:  an  admission  as  to  the  value  of 
the  horses  being  transported,  and  that  this  was  therefore  binding  on  both.. 

In  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Lesser,  46  Ark.  236  (1885),  it  was  held 
that  if  a  partial  injury  should  occur,  amounting  to  less  than  the  amount 
specified  as  the  value  of  the  animal  transported,  the  damages  should 
abate  pro  rata. 

In  Brehme  v.  Adams  Ex.  Co.,  supra,  plaintiff  delivered  to  defendant 
a  package  of  merchandise  to  be  transported  from  New  York  to  Balti- 
more. The  contract  was  evidenced  by  a  printed  receipt,  signed  by  the 
agent  of  the  express  company,  containing  a  stipulation  that  in  no  event 
"shall  the  holder  hereof  demand  beyond  the  sum  of  I50,  at  which  the 
article  forwarded  is  hereby  valued,  unless  otherwise  herein  expressed, 
or  unless  specially  insured,  and  so  specified  in  this  receipt."  The  con- 
tents of  the  package  were  light  and  costly  goods,  worth  I675.  This  was 
not  known  to  the  express  company;  no  statement  of  its  value  was  made  by 


I  1 6        THE  MODERN  LAW  OF  CARRIERS. 

should  be  done  or  loss  occur  through  the  negligence  of 
the  carrier's  servants.^ 

the  plaintiffs,  and  no  Special  insurance  effected.  Held,  that  the  receipt 
constituted  a  contract  between  the  parties  for  the  carriage  of  the  pack- 
age, binding  upon  both,  and  that  the  plaintiff  could  only  recover  the 
sum  at  which  the  package  was  valued  in  the  receipt,  with  interest  there- 
on. 

1  The  leading  case  is  Hart  v.  Pennsylvania  R.  R.,  112  U.  S-  331 
(18S4);  affg.  s.  c.  2  McCrary,  333  (1881).  In  this  case  the  stock  to  be 
transported  was  valued  in  the  bill  of  lading  at  a  fixed  sum,  and  the 
clause  was  held  valid,  though  the  loss  arose  from  negligence.  The 
court  say,  "  As  a  general  rule,  and  in  the  absence  of  fraud  or  imposition, 
a  common  carrier  is  answerable  for  the  loss  of  a  package  of  goods, 
though  he  is  ignorant  of  its  contents,  and  though  its  contents  are  ever 
so  valuable,  if  he  does  not  make  a  special  acceptance.  This  is  reason- 
able, because  he  can  always  guard  himself  by  a  special  acceptance,  or 
by  insisting  on  being  informed  of  the  nature  and  value  of  the  articles 
before  receiving  them. 

"  If  the  shipper  is  guilty  of  fraud  or  imposition,  by  misrepresenting 
the  nature  or  value  of  the  articles,  he  destroys  his  claim  to  indemnity, 
because  he  has  attempted  to  deprive  the  carrier  of  the  right  to  be  com- 
pensated in  proportion  to  the  value  of  the  articles  and  the  conse- 
quent risk  assumed,  and  what  he  has  done  has  tended  to  lessen  the 
vigilance  the  carrier  would  otherwise  have  bestowed.  2  Kent.  Com. 
603,  and  cases  cited;  Relf  v.  Rapp,  3  Watts.  &  S.  21  (1841);  Dunlap  v. 
International  Steamboat  Co.,  98  Mass-  371  (1867);  N.  Y.  C.  Railroad 
Co.  V.  Fraloff,  100  U.  S.  24  (1879). 

"  This  qualification  of  the  liability  of  the  carrier  is  reasonable,  and  is 
as  important  as  the  rule  which  it  qualifies. 

"  There  is  no  justice  in  allowing  the  shipper  to  be  paid  a  large  value 
for  an  article  which  he  has  induced  the  carrier  to  take  at  a  low  rate  of 
freight  on  the  assertion  and  agreement  that  its  value  is  a  less  sum  than 
that  claimed  after  a  loss.  It  is  just  to  hold  the  shipper  to  his  agree- 
ment, fairly  made,  as  to  value,  even  where  the  loss  or  injury  has  occur- 
red through  the  negligence  of  the  carrier.  The  effect  of  the  agreement 
is  to  cheapen  the  freight  and  secure  the  carriage,  if  there  is  no  loss;  and 
the  effect  of  disregarding  the  agreement,  after  a  loss,  is  to  expose  the 
carrier  to  a  greater  risk  than  the  parties  intended  he  should  assume. 
The  agreement  as  to  value  in  this  case  stands  as  if  the  carrier  had  asked 
the  value  of  the  horses,  and  had  been  told  by  the  plaintiff  the  sum  in- 
serted in  the  contract. 

"  The  limitation  as  to  value  has  no  tendency  to  exempt  from  liabil- 
ity for  negligence.  It  does  not  induce  want  of  care.  It  exacts  from 
the  carrier  the  measure  of  care  due  to  the  value  agreed  on.  The  carrier 
is  bound  to  respond  in  that  value  for  negligence.  The  compensation 
for  carriage  is  based  on  that  value.  The  shipper  is  estopped  from  say- 
ing that  the  value  is  greater.  The  articles  have  no  greater  value  for  the 
purposes  of  the  contract  of  transportation  between  the  parties  to  that 
contract.     The  carrier  must  respond  for  negligence  up  to  that  value. 


IMITATIONS   AS   TO   AMOUNT   OF   LIABILITY.         II 7 

The  rigor  of  the  rule  declared  by  the  Federal  and  many 
of  the  State  Courts,  which  rejected  stipulations  exonerat- 

It  is  just  and  reasonable  that  such  a  contract  fairly  entered  into,  and 
where  there  is  no  deceit  practiced  on  the  shipper,  should  be  upheld. 
There  is  no  violation  of  public  policy.  On  the  contrary,  it  would  be 
unjust  and  unreasonable,  and  would  be  repugnant  to  the  soundest  prin- 
ciples of  fair  dealing  and  of  the  freedom  of  contracting,  and  thus  in 
conflict  with  public  policy,  if  a  shipper  should  be  allowed  to  reap  the 
benefit  of  the  contract  if  there  is  no  loss,  and  to  repudiate  it  in  case  of 
loss.     .     .     . 

"  The  subject  matter  of  a  contract  may  be  valued,  or  the  damages  in 
case  of  a  breach  may  be  liquidated  in  advance.  In  the  present  case, 
the  plaintiff  accepted  the  valuation  as  'just  and  reasonable.'  The  bill 
of  lading  did  not  contain  a  valuation  of  all  animals  at  a  fixed  sum  for 
each,  but  a  graduated  valuation  according  to  the  nature  of  the  animal. 
It  does  not  appear  that  an  unreasonable  price  would  have  been  charged 
for  a  higher  valuation." 

In  accord  with  the  Hart  case  are  the  following  decisions  in 

Federal  Courts. — Muser  v.  Holland,  17  Blatchf.  412  (1880);  s.  c.  i 
Fed.  Rep.  382  (1880);  Earnest  v.  Express  Co.,  i  Woods,  573  (1873); 
Hopkins  v.  Westcott,  6  Blatchf.  64  (1868). 

Alabama. — Louisville  &  N.  R.  Co.  v.  Sherrod,  4  So.  Rep.  29  (1888); 
s.  C.  84  Ala.  178. 

Illinois. — Oppenheimer  v.  U.  S.  Ex.  Co.,  69  111.  62  (1873). 

Massachusetts. — Hill  v.  Boston,  H.  T.  &  W.  R.  R.,  144  Mass.  284 
(1887);  Graves  v.  Lake  Shore  &  M.  S.  R.  R.  137  Mass.  33  (1884); 
Squire  v.  N.  Y.  Central  R.  R.,  98  Mass.  239  (1867);  Judson  v.  Western 
R.  R.,  6  Allen,  486  (1863). 

Missouri. — Harvey  v.  Terre  Haute  &  I.  R.  R.,  74  Mo.  538  (1881). 

New  York. — Magnin  v.  Dinsmore,  70  N.  Y.  410  (1877);  62  N.  Y.  35 
(1875);  56  N.  Y.  168  (1874);  Steers  v.  Liverpool,  N.  Y.  &  P.  S.  S.  Co., 
57  N.  Y.  I  (1874);  Belger  v.  Dinsmore,  51  N.  Y.  166  (1872). 

Pennsylvania. — Farnham  v.  Camden  &  A.  R.  R.,  55  Penn.  St.  53 
(1867);  Elkins  V.  Empire  Trans.  Co.,  81  Penn.  (32  P.  F.  Smith),  315 
(1876);  Newburger  z;.  Howard,  6  Phila.  174  (1866). 

These  appear  to  be  overruled  by  Grogan  v.  Adams  Ex.  Co.,  114 
Penn.  St.  528  (1886).     This  considers  and  disapproves  the  Hart  case. 

To  the  contrary  are  the  following  cases : 

Federal  Courts.— The  Hindoo,  i  Fed.  Rep.  627  (1880);  The  City  of 
Norwich,  4  Bened.  271  (1870).  In  this  case,  however,  it  is  to  be  ob- 
served that  the  bill  of  lading  did  not  in  terms  exempt  the  carrier  from 
liability  for  negligence.  The  language  was:  "No  package,  if  lost, 
damaged,  or  stolen  should  be  deemed  of  greater  value  than  $roo,  unless 
specially  receipted  for."  These  cases  are  no  longer  authority  in  the 
Federal  Courts  as  they  are  clearly  overruled  by  the  Hart  case. 

Alabama.— Mobile  &  Ohio  R.  R.  v.  Hopkins,  41  Ala.  486  (1868); 
Ala.  G.  S.  R.  R  v.  Little,  71  Ala.  611  (1882);  L.  &  N.  R.  R.  v.  Oden, 
80  Ala.  38  (1885);  S.  &  N.  Ala.  R.  R.  v.  Henlein,  52  Ala.  606  (1875)-, 
s.  c.  56  Ala.  368  (1876). 

Indiana. — Adams   Express   Co.    v.    Harris,  21    N.  East.  Rep.  340 


Il8  THE   MODERN   LAW   OF   CARRIERS. 

ing  the  carrier  from  liability  for  loss  or  injury  caused  by 
the  negligence  of  his  servants,  led  to  the  insertion  of 
these  clauses  limiting  the  amount  of  the  carrier  s  liabil- 
ity. Other  forms  of  contract  were  resorted  to  in  order  to 
restrict  the  application  of  the  decisions  referred  to.  One 
of  the  most  common  of  these  is  a  clause  that  "in  case  of 
loss,  damage  or  non-delivery,  the  ship-owner  shall  not  be 
liable  for  more  than  the  invoice  value  of  the  goods." 
Clauses  in  this  and  similar  language  are  valid.  They  do 
no  more  than  liquidate  the  damages  for  a  breach  of  the 
contract  of  affreightment.^ 

The  Supreme  Court  of  the  United  States  has  held  that 


(1889).  In  this  case  the  court  drew  attention  to  the  fact  that  it  did 
not  appear  that  the  limitation  was  in  consideration  of  a  lower  rate  of 
freight. 

Kansas. — Kansas  City,  St.  J.  &  C  B.  R.  R.  v.  Simpson,  30  Kans. 
645  (1883);  s.  c.  2  Pac.  Rep.  821. 

Minnesota.— Moulton  v.  St.  Paul,  M.  &  M.  R.  Co.,  31  Minn.  85 
(1883);  s.  c.  16  N.  W.  Rep.  497;  47  Am.  Rep.  781. 

Mississippi.— Chicago,  St.  L.  &  N.  O.  R.  R.  v.  Abels,  60  Miss.  1017 
(1883);  Southern  Ex.  Co.  v.  Moon,  39  Miss.  822  (1863). 

Ohio.— U.  S.  Ex.  Co.  v.  Backman,  28  Ohio  St.  144  (1875);  s.  c.  2 
Cine.  255. 

Pennsylvania. — Grogan  v.  Adams  Ex.  Co.,  114  Penn.  523;  s.  c  5 
Central  Rep.  298  (1886);  expressly  declining  to  follow  Hart  v.  Penn.  R. 
Co.,  supra. 

Tennessee.— Cunard  v.  E.  T.  V.  &  G.  R.  R.,  16  Lea  (Tenn.),  225 
(1886);  s.  c.  57  Am.  Rep.  226. 

Wisconsin. — Black  v.  Goodrich  Trans.  Co.,  55  Wis.  319  (1882);  s.  c 
13  N.  W.  Rep.  244;  42  Am.  Rep.  713;  distinguishing  Hart  v.  Ry.; 
Magnin  v.  Dinsmore,  &c. 

^  Brown  v.  Cunard  S.  S.  Co.,  16  N.  East.  717  (1888)  (Mass.);  criticis- 
ing The  Lydian  Monarch,  infra  ;  The  Aline,  25  Fed.  Rep.  562  (1885); 
The  Lydian  Monarch,  23  Fed.  Rep.  298  (1885);  The  Hadji,  18  Fed. 
Rep.  459  (1883);  Rosenfeld  v.  Peoria,  D.  &  E.  Ry.  Co.  (Ind.)  2  North 
Eastern  Rep.  344  (1885);  So.  &  N.  Ala.  R.  R.  Co.  v.  Henlein,  52  Ala.  606 
(1875);  s.  c.  56  Ala.  368  (1876).  And  a  stipulation  that  the  value  of  the 
goods  shall  be  estimated  at  the  place  of  shipment  is  valid.  Phoenix  Ins. 
Co.  V.  Erie  &  W.  Trans.  Co.,  117  U.  S.  314,  322  (1886). 

Under  such  a  stipulation,  if  a  part  only  of  the  goods  should  be 
damaged,  and  those  not  damaged  sell  for  more  than  the  invoice  value, 
this  does  not  lessen  the  carrier's  liability  for  the  goods  which  are 
damaged,  and  which,  in  consequence,  sell  for  less  than  their  invoice 
value.     Pearse  v.  Quebec  S  S.  Co.,  24  Fed.  Rep.  285  (1885.) 


LIMITATIONS   AS   TO   AMOUNT   OF   LIABILITY.         II 9 

a  carrier  may  make  reasonable  regulations  on  the  subject 
of  valuation,  and  that  they  are  binding  if  knowledge  of 
them  is  brought  home  to  the  passenger.  In  the  same  case 
it  was  held  that  in  the  absence  of  such  knowledge  the 
regulations  were  not  binding,  and  that  the  carrier  was  li- 
able for  the  full  value  of  costly  laces  belonging  to  the 
passenger,  and  contained  in  trunks  having  no  external  in- 
dication of  their  value.^ 

1  N.  Y.  Central  R.  R.  v.  Fraloff,  100  U.  S.  24  (1879).  In  Magnin  v. 
Dinsmore,  62  N.  Y.  35  (1875),  the  court  say :  "  Where  there  is  no  special 
contract  limiting  the  common  law  liability  of  the  carrier,  nor  any  notice 
so  specially  brought  home  to  the  knowledge  of  the  shipper  as  to  have 
that  effect,  the  shipper  is  not  bound  to  disclose  the  value  of  the  goods 
unless  he  is  asked  thereof  by  the  carrier."  Cf.  Hart  v.  Penn.  R.  R., 
112  U.  S.  331  (1884). 

In  the  Fraloff  case  the  plaintiff,  who  was  a  woman  of  large  wealth 
and  high  social  position,  visited  America.  She  brought  with  her  six 
trunks  of  ordinary  travel  worn  appearance,  containing  wearing  apparel, 
including  valuable  dresses  and  laces  which  she  had  been  accustomed  to 
wear  on  different  occasions.  She  delivered  to  the  carrier  at  Albany  for 
transportation  as  her  baggage,  to  Niagara  Falls,  two  of  these  trunks, 
which  contained  the  larger  portion  of  her  laces.  During  the  transit,  the 
locks  of  one  of  the  trunks  was  broken,  and  more  than  200  yards  of  lace 
abstracted.  The  main  contention  of  the  carrier  was  that  good  faith  re- 
quired the  passenger  when  delivering  her  trunks  for  transportation,  to 
inform  its  agents  of  the  peculiar  character  and  extraordinary  value  of 
the  laces  in  question,  and  that  her  failure  in  that  respect,  whether  inten- 
tional or  not,  was  in  itself  a  fraud  upon  the  carrier  which  would  prevent 
any  recovery. 

The  Supreme  Court  held  that  in  the  absence  of  legislation  limiting 
the  responsibility  of  the  carriers  for  the  baggage  of  passengers,  as  well 
as  of  reasonable  regulations  upon  the  subject  by  the  carrier  himself,  of 
which  the  passenger  has  knowledge,  and  also  in  the  absence  of  inquiry 
of  the  passenger  as  to  the  value  of  the  articles  carried,  the  mere  failure 
of  the  passenger  to  disclose  the  value  of  his  baggage  is  not  a  fraud  upon 
the  carrier  which  defeats  all  right  of  recovery. 

On  the  question  whether  in  a  given  case  the  quantity  and  value  of 
the  passenger's  baggage  is  reasonable  or  not,  due  consideration  must  be 
given  to  the  circumstances  of  the  individual,  his  wealth,  social  position 
and  the  peculiar  objects  of  his  journey,  and  while  the  carrier  is  not  to 
be  made  responsible  for  such  unusual  articles  as  the  exceptional  fancies, 
habits  or  idiosyncrasies  of  some  particular  individual  may  prompt  him 
to  carry,  still  he  is  liable  for  what  persons  in  his  station  or  pursuit  in 
life  usually  carry  for  their  comfort,  convenience  and  gratification  upon 
such  journeys. 

This  case  distinctly  concedes  that  the  carrier  may  make  reasonable 
regulations  on  this  subject,  which  will  be  binding  if  brought  home  to 


I20  THE   MODERN   LAW   OF   CARRIERS. 

The  same  nile  of  construction  applies  to  contracts  or 
notices  by  which  it  is  sought  to  limit  the  amount  of  the 
carrier's  liability,  as  to  those  by  which  he  attempts  to 
limit  the  liability  altogether.  In  either  case  he  is  liable 
to  the  full  amount  of  the  damages  for  injury  or  loss 
caused  by  the  negligence  of  his  servants,  unless  the  in- 
tention that  he  shall  not  be  liable  for  negligence  is  dis- 
tinctly expressed.  No  general  words  will  suffice  for  this 
purpose.^ 

Where  the  direction,  C.  O.  D.  $292,  was  written  on  the 
face  of  the  bill  of  lading,  it  was  held  that  this  was  suf- 
ficient notice  to  the  carrier  of  the  value  of  the  goods 
shipped.  The  bill  of  lading  contained  the  usual  clause 
that  the  article  was  valued  at  $50,  unlesss  otherwise  stated 
therein.^ 

the  knowledge  of  the  shipper;  and  so  the  Supreme  Court  of  North 
Carolina  said,  Smith  v.  North  Carolina  R.  R.,  64  N.  C  235  (1870), 
"  They  may  reasonably  qualify  their  liability  for  the  loss  of  brittle, 
perishable,  or  unusually  valuable  articles." 

^  Wescott  V.  Fargo,  61  N.  Y.  542  (1875);  affg.  s.  c.  6  Lansing  319 
(1872).  The  fact  that  there  are  other  clauses  in  the  contract  exempt- 
ing the  carrier  from  liability  for  loss  from  certain  specified  perils,  oc- 
casioned by  the  negligence  of  his  servants  is  immaterial.  The  clause 
limiting  the  liability  as  to  amount  must  be  construed  by  itself.  At 
p.  554,  the  court  say  :  "  *  Nor  shall  this  company  be  liable  for  any  loss  or 
damage  of  any  box,  package,  or  thing  for  over  fifty  dollars,  unless  the 
just  and  true  value  thereof  is  herein  stated.'  There  is  in  this  phrase- 
ology no  such  clear  and  distinct  expression  of  exemption  from  loss  by 
negligence  as  the  case  of  Magnin  v.  Dinsmore  requires,  and  it  has  been 
already  shown  that  there  was,  as  in  that  case,  sufficient  evidence  of 
negligence  to  justify  a  finding  to  that  effect."  s.  P.,  Black  v.  Goodrich 
Trans.  Co.,  55  Wis.  319  (1882);  Magnin  v.  Dinsmore,  56  N.  Y.  i68- 
(1874).  See  the  fuller  statement  of  this  case  Chapter  IX;  Vro- 
man  v.  American  Ex.  Co.,  5  Thomps.  &  Cook  (N.  Y.),  22;  s.  c.  2 
Hun,  512  (1874);  Prentice  v.  Decker,  49  Barb.  (N.  Y.)  21  (1867); 
Smith  V.  N.  Y.  Central  R.  R.,  29  Barb.  (N.  Y.)  132  (1859);  Indiana- 
polis &  C.  R.  R.  Co.  V.  Cox,  29  Ind.  360  (1868).  This  w^as  a  case  of 
passenger's  baggage.  The  limitation  sought  to  be  effected  was  stamped 
on  the  baggage  check. 

*  Van  Winkle  v.  Adams  Express  Co.,  3  Robt.  N.  Y.  59  (1864).  In 
Wilson  V.  Freeman,  3  Campb.  527  {1814),  it  was  held  that  verbal  notice 
to  the  carrier's  agent  of  the  value  of  the  goods  accompanied  with  an 
offer  to  pay  whatever  sum  should  be  required  as  freight  was  sufficient 


LIMIT ATlONvS   AS   TO   AMOUNT   OF   LIABILITY.         121 

The  carrier  may,  by  agreement,  limit  his  liability  for 
articles  of  a  fragile  nature,  the  character  of  which  is  not 
marked  upon  them,  or  which  are  not  securely  packed;^ 
and  for  articles  of  especial  value,  such  as  jewelry^  or 
musk.^ 

After  considerable  discussion  it  is  settled  that  the  word 
article,  in  a  bill  of  lading  containing  such  a  limitation, 
means  a  package,  and  not  each  piece  or  thing  contained 
in  such  package.^ 

to  charge  the  carrier  with  liability  for  the  full  value  of  the  goods  not- 
withstanding a  notice  by  him  to  the  contrary.  So  in  Down  v.  Fromont, 
4  Campb.  40  (1814),  it  was  held  that  if  the  goods  delivered  were  ob^ 
viously  worth  over  the  amount  limited  in  the  notice  no  express  state- 
ment of  their  value  was  necessary. 

^  Boorman  v.  Am.  Ex.  Co.,  21  Wis.  152  (1866).  In  this  case  the 
question  as  to  the  effect  of  negligence  was  not  decided. 

2  The  Bermuda,  23  Blatchf.  554;  s.  c.  27  Fed.  Rep.  476  (1885); 
affd.  29  Fed.  Eep.  399  (1886). 

^  The  Denmark,  27  Fed.  Rep.  141  (1886).  In  this  case  the  question 
as  to  the  effect  of  negligence  did  not  arise. 

*  Wetzell  V.  Dinsmore,  54  N.  Y,  496  (1873);  Wyld  v.  Pickford,  8 
Mees.  &  Wels.  443  (1844);  Berntein  v.  Baxendale,  6  Comm.  B.  (N.  S.) 
251(1859);  Henderson  7A  London  &  N.W.  R.  L.  R.  Co.,  5  Exch.  90(1870)^ 
Baxendale  v.  Great  E.  R.  L.  R.  Co.,  4  Qu.  B.  244  (1869). 

In  Boscowitz  v.  Adams  Ex.  Co.,  93  111.  523  {1879),  it  was  held  that 
a  stipulation  in  an  express  receipt  for  3  bales  that  the  company  is  not 
to  be  liable  "  for  any  loss  or  damage  of  any  box,  package,  or  thing  for 
over  $50,"  means  $50  for  each  bale  or  package. 

In  Wetzell  v.  Dinsmore,  defendant  received  a  package  containing 
three  cases  of  pills  worth  li  13.50  per  case.  The  receipt  contained  a 
clause  that  the  holder  should  not  demand  more  than  850  for  any  loss  or 
damage  at  which  ''  the  article  forwarded "  is  valued,  and  which  shall 
constitute  the  limit  of  the  liability  of  the  company.  The  three  cases 
were  separately  addressed  to  plaintiffs  and  were  wrapped  up  with  a  pro- 
per cover  in  a  single  package  similarly  addressed.  But  one  of  the  cases 
reached  plaintiffs.  Held,  that  "  the  article  forwarded  "  was  the  single 
package,  and  that  plaintiff's  were  not  entitled  to  recover  $50  upon  each 
of  the  missing  cases.  Had  each  case  to  defendant's  knowledge  con- 
tained a  different  kind  of  drug,  whether  the  same  rule  would  have  been 
applied,  quere. 

In  Wyld  V.  Pickford,  the  carrier  gave  notice  to  the  shipper  that  he 
would  not  be  responsible  for  the  loss  or  damage  to  the  goods  unless  a 
higher  than  the  ordinary  rate  of  insurance  be  paid  for  the  carriage. 
The  shipper  delivered  the  goods  after  receiving  this  notice.  It  was  held 
that  this  amounted  to  a  special  contract  to  carry  the  goods  on  the  terms 


122  THE   MODERN   I<AW   OF   CARRIERS. 

A  different  rule  had  been  laid  down  by  tbe  New  York 
Common  Pleas,  and  by  the  U.  S.  Circuit  Court  for  the 
Southern  District  of  New  York/  but  these  cases  can  no 
longer  be  considered  as  authority. 

Where  the  bill  of  lading  provided  that  the  carrier 
should  not  be  liable  for  more  than  the  invoice  value  of  the 
goods,  it  was  held  that  this  did  not  mean  liable  to  pay  more 
damage  than  the  invoice  value  of  the  goods  shipped,  but 
that  the  carrier  would  not  be  liable  for  more  than  the  in- 
voice value  of  the  particular  goods  damaged.^ 

stated,  but  that  the  carrier  was  not  exempted  thereby  from  all  responsi- 
bility; but  was  bound  to  take  ordinary  care  in  the  carriage  of  the  goods, 
and  liable  not  only  for  any  act  which  would  amount  to  a  total  abandon- 
ment of  his  character  of  a  carrier,  or  for  willful  negligence,  but  also  for 
a  conversion  by  a  mis-delivery  arising  from  the  failure  to  exercise  ordi- 
nary care. 

*  Earle  v.  Cadmus,  2  Daly,  237  (1867);  Hopkins  v.  Westcott,  6 
Blatchf.  64  (1868).  The  latter  decision  was  by  Judge  Smalley  at  Nisi 
Prius. 

2  Pearse  v.  The  Quebec  Steamship  Co.,  24  Fed.  Rep.  285  (1885); 
see  Brown  v.  Cunard  S.  S.  Co.,  16  North  E.  Rep.  717  (1888)  Mass. 

In  the  latter  case  it  was  held  that  although,  after  damage,  the  goods 
are  still  worth  the  invoice  value,  the  actual  damage  up  to  the  amount  of 
the  invoice  value  must  be  paid. 


CHAPTER  VI. 

TIME   AND   MANNER   OF   PRESENTING   CLAIMS. 

The  carrier  may  lawfully,  by  contract  with,  the  ship- 
per, regulate  the  time  within  which  claims  against  himself 
must  be  presented,  and  limit  his  liability  to  cases  in  which 
the  claim  shall  be  presented  within  the  time  stipulated  by 
the  contract.^  But  the  contract  will  not  be  enforced  un- 
less its  terms  afford  to  the  shipper  a  reasonable  opportu- 
nity to  present  his  claim.' 

'  Express  Co.  v.  Caldwell,  21  Wall.  264  (1874);  Southern  Ex.  Co.  v. 
Hunnicutt,  54  Miss.  566  (1877);  U.  S.  Ex.  Co.  v.  Harris,  51  Ind.  127 
{1875);  Weir  V.  Express  Co.,  5  Phila.  355  (1864);  Southern  Express 
Co.  z'  Glenn,  16  Lea  (Tenn.),  472  (1886);  Lewis  v.  Great  Western  R. 
Co.,  5  H.  &  N.  867;  s.  c.  29  L.  J.  Exch.  425  (i860).  Similar  clauses  (30 
days)  in  policies  of  insurance  are  held  valid.  Steen  v.  Niagara  Fire  Ins. 
Co.,  89  xV.  Y.  315  (1882);  Wilkinson  v.  First  Nat.  Fire  Ins.  Co.,  72  N. 
Y.  499  (1878).  So  they  are  in  telegraph  contracts.  Cole  v.  Western 
Union  Tel.  Co.,  zz  Minn.  227;  s.  c  22  N.  W.  Rep.  385  (1885);  Wolf  v. 
Western  Union  Telegraph  Co.,  62  Penn.  83  (1869);  Young  v.  Western 
Union  Tel.  Co.,  34  N.  Y.  Super.  Ct.  390  (1872). 

2  Missouri  Pacific  R.  Co.  v.  Harris,  67  Texas,  166  (1886).  There  is 
some  conflict  in  the  authorities  as  to  what  will  be  a  reasonable  time. 
This  depends  primarily  upon  the  circumstances  of  each  case.  In  Ex- 
press Co.  V.  Caldwell,  21  Wall.  264  (1874),  the  time  limit  of  ninety 
days  from  delivery  to  the  carrier  was  held  a  reasonable  one-  But  the 
court  put  this  on  the  ground  that  the  time  for  the  transit  was  short — 
only  one  day.  Such  a  clause  was  held  invalid  in  Porter  v.  Southern 
Express  Co.,  4  So.  Car.  135  (1872).  A  clause  limiting  the  time  to  30 
days  was  held  invalid  in  Southern  Express  Co.  v.  Caperton,  44  Ala.  loi 
(1870).  A  similar  clause  was  held  to  be  reasonable  and  valid  in  Hirsh- 
berg  z^.  Dinsmore,  12  Daly  (N.  Y.),  429  (1884);  Smith  v.  Dinsmore,  9 
Daly  (N.  Y.),  188  (1880);  Kaiser  v.  Hoey,  i  N.  Y.  Supp.  429  (1888).  A 
clause  limiting  the  time  to  five  days  from  the  loss  was  held  valid  in 
Chicago  &  Alton  R.  R.  v.  Simms,  18  111.  App.  68  (1885);  Dawson  v. 
St.  Louis,  K.  C.  &  N.  R.  Co.,  76  Mo.  514  (1882).  Forty  days  after  oc- 
currence of  damage  were  held  to  be  a  reasonable  time  in  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Trawick,  68  Texas,  314  (1887).  On  the  other  hand  in  the 
same  State,  a  limitation  of  sixty  days  from  shipment  was  held  unreason- 
able.    Pacific  Ex.  Co.  v.  Darnell,  6  S.  W.  Rep.  765  (1887).     The  reason- 


124  THE    MODERN    LAW    OF    CARRIERS. 

So  also  the  carrier  and  shipper  may  lawfully  contract 
to  limit  the  liability  of  the  carrier  to  cases  in  which   a 

ableness  of  such  a  condition  was  admitted  in  Glenn  %k  So.  Exp.  Co.,  86 
Tenn.  594;  s.  c.  8  S.  W.  Rep.  152  (1888),  but  it  was  held  that  if  the 
omission  to  present  the  claim  within  the  stipulated  time  was  not  caused 
by  any  fault  or  negligence  of  the  owner  of  the  goods  he  could  recover. 
A  mere  custom  as  to  presenting  claims  will  not  limit  the  shipper's  right, 
unless  he  had  a  reasonable  opportunity  to  present  his  claim.  Missouri 
Pac.  R^  Co.  V.  Fagan  (Texas),  9  S-  W.  Rep.  749  (1888).  Seven  days 
from  delivery  to  the  consignee  were  held  to  be  a  reasonable  time  in 
Lewis  z'.  Great  Western  R.  Co.,  5  H.  &  N.  867;  s.  c.  29  L.  J.  Exch. 
425  (i860).  In  Weir  ?'.  Express  Co.,  5  Phila.  355  (1864),  the  limitation 
for  presentation  of  claims  was  "  within  thirty  days  after  the  time  when 
said  property  has  or  ought  to  have  been  delivered."  The  court  say  : 
"This  is  a  very  reasonable  and  proper  provision  to  enable  the  defend- 
ants, while  the  matter  is  still  fresh,  to  institute  proper  inquiries  and  fur- 
nish themselves  with  evidence  on  the  subject.  The  defendants  do  a 
large  business,  and  to  allow  suits  to  be  brought  against  them,  without 
such  notice,  at  any  length  of  time,  would  be  to  surrender  them  bound 
hand  and  foot  to  almost  every  claim  which  might  be  made.  It  would 
be  next  to  impossible  when  a  thousand  packages,  large  and  small,  are 
forwarded  by  them  daily,  to  ascertain  anything  about  the  loss  of  one  of 
them  at  a  distance  of  six  months  or  a  year." 

In  Porter  v.  Southern  Ex.  Co.,  the  court  said  :  "  The  view  of  this 
clause,  taken  by  the  defendants,  is.  that  it  operates  as  a  limitation  on 
that  part  of  the  contract  that  requires  the  delivery  at  the  designated 
point  of  the  same  articles  delivered  to  the  defendant  for  conveyance. 
The  effect  of  this  would  be  that  by  the  terms  of  the  contract  the  defend- 
ants would  be  bound  in  general  terms  to  deliver  to  the  plaintiffs  at  a 
certain  point,  and  yet  the  plaintiffs  would  not  be  entitled  to  enforce 
such  obligation  unless  demand  therefor  was  made  within  ninety  days. 
It  is  not  to  be  presumed  that  language  employed  in  a  contract  was  in- 
tended to  impose  obligations  on  one  of  the  contracting  parties,  and  yet 
not  to  create  rights  of  a  corresponding  character  in  the  other  party. 
Certamly  language  that  will  reasonably  bear  any  other  construction 
should  not  be  allowed  to  have  such  effect.  If  the  construction  con- 
tended for  by  the  defendants  is  sound,  then  the  ninety  days  clause  was 
intended  to  operate  with  force  and  effect  like  that  of  the  Statute  of 
Limitations  upon  the  plaintiff's  right  of  action  arising  on  a  breach  of 
the  express  contract  to  convey  and  deliver.  We  must  exclude  all 
other  reasonable  constructions  before  ascribing  to  the  parties  such  an 
intent." 

In  a  case  where  the  goods  were  to  be  transported  from  Indiana  to 
Georgia  and  the  country  was  in  an  unsettled  condition,  it  was  held  that 
a  condition  that  the  claim  must  be  presented  within  thirty  days  after 
date  of  receipt  by  the  carrier  was  unreasonable  and  invalid.  Adams 
Express  Co.  v.  Reagan,  29  Ind.  21  (1867). 

A  condition  printed  on  a  telegraph  blank  "  that  no  claim  for  dam- 
ages shall  be  valid  unless  presented  in  writing  within  twenty  days  from 


TIME   AND   MANNER   OF   PRESENTING   CLAIMS.        1 2$ 

claim  for  damages  shall  be  presented  in  the  manner  pre- 
scribed by  the  contract.  A  stipulation  is  valid  whicli  re- 
quires that  claims  for  damages  shall  be  presented  at  the 
time  the  goods  or  cattle  are  received  by  the  consignee  or 
before  they  are  mingled  with  other  goods  or  cattle.^ 


sending  the  message,"  was  held  reasonable  and  valid,  in  Heimann  v. 
Western  Union  Tel.  Co.,  57  Wis.  562  (1883).  In  the  same  case  it  was 
held  that  delay  in  delivering  the  message,  though  occasioned  by  a  mis- 
take of  the  company,  would  not  extend  the  time  for  presenting  a  claim 
for  damages,  if  a  reasonable  time  was  left  after  knowledge  of  the  mis- 
take, to  present  the  claim.  It  was  also  held  that  the  reasonableness  of 
the  time  fixed  by  the  contract  was  a  question  of  law  to  be  determined 
by  the  courts. 

1  A  clause  requiring  goods  to  be  examined  before  leaving  the  station, 
as  applied  to  a  car  load  of  cotton  is  not  reasonable.  Capehart  v.  Seabord 
&  R.  R.  R.,  81  No.  Car.  438  (1879);  overruling  s.  c.  77  No.  Car.  355 
(1877);  Owen  V.  Louisville  &  N.  R.  R.  (Ky.)  9  S.  W.  Rep.  698  (1888); 
Rice  V.  Kansas  Pacific  R.  Co.,  63  Mo.  314  (1876);  Sprague  v.  Missouri 
Pacific  R.  Co.,  34  Kans.  347  (1885);  Goggin  v.  The  Kansas  Pac.  Ry. 
Co.,  12  Kansas,  416  (1874).  In  this  latter  case  there  were  special  cir- 
cumstances which  somewhat  restrain  the  full  effect  otherwise  to  be 
given  to  the  decision.  The  stipulation  was  that  "  no  claim  for  loss  or 
damage  on  live  stock  will  be  allowed  unless  the  same  is  made  in  writing, 
before  or  at  the  time  the  stock  is  unloaded."  The  owner  was  well  aware 
of  their  condition  when  delivered  to  him,  yet  did  not  then,  nor  for 
more  than  a  year  thereafter,  make  any  demand  in  writing,  for  damage 
sustained.  He  signed  the  contract  under  protest  after  the  cattle  were 
in  the  car,  and  verbally  notified  the  servants  of  the  company  of  the 
damage  before  the  cattle  were  unloaded  ;  and  immediately  after  sought 
for  writing  materials  to  make  out  a  written  notice  to  serve  on  the  agents 
of  the  company,  but  before  he  was  able  to  find  the  materials  and  write 
the  notice,  the  cattle  were  unloaded,  so  that  no  notice  was  given.  The 
court  say:  "  It  is  no  excuse  for  not  performing  a  contract,  that  it  was 
signed  under  protest.  The  plaintiff  had  his  option  to  have  his  cattle 
transported  at  the  usual  rates,  and  hold  the  company  responsible  as  a 
common  carrier,  or  at  special  rates  on  lower  terms,  and  with  less  re- 
sponsibility on  the  part  of  the  carrier.  .  .  .  Neither  is  the  reason  for  not 
giving  the  written  notice  sufficient.  If  the  contract  stipulation  as  to 
written  notice  is  valid,  then  the  inability  to  procure  writing  materials  at 
the  instant  of  unloading  of  the  cattle,  is  no  excuse  for  not  giving  notice 
for  more  than  a  year  afterward.  .  .  .  The  stipulation  as  to  notice 
contravenes  no  statute.  The  parties  were  competent  to  make  the  con- 
tract, and  did  make  it,  and  it  must  be  held  good  unless  it  is  contrary  to 
public  policy.  .  .  .  The  defendant  was  engaged  in  transporting 
great  numbers  of  cattle  over  its  road,  which  were  shipped  further  to 
market,  or  so  commingled  with  other  stock  that  it  would  be  impossible 
to  distinguish  one  carload  from  another,  unless  attention  was  called  to 


126  THE    MODERN    LAW    OF   CARRIERS. 

Siicli  a  restriction  would  not,  however,  apply  to  a  claim 
for  latent  injuries,  provided  the  claim  were  presented 
within  a  reasonable  time  after  the  discovery  of  the  injury,^ 
So  a  stipulation  is  valid  that  claims  for  loss  or  damage 
shall  not  be  allowed  or  sued  for  unless  written  notice  of 
the  loss  is  given  to  the  carrier.^     But  in  such  case  it  has 


them  immediately,  and  the  object  of  the  notice  was  to  reheve  the  com- 
pany from  false  and  fictitious  claims,  by  having  an  inspection  of  the 
cattle  before  they  were  removed  or  mingled  with  other  cattle,  and  pro- 
per damages  ascertained  and  allowed,  of  which  reasons  the  plaintiff  had 
full  knowledge,  and  still  chose  to  ship  at  reduced  special  rates.  The 
reasons  are  cogent,  and  we  are  unable  to  see  how  it  contravenes  public 
policy  that  a  special  contract  at  reduced  rates  should  stipulate  that  rea- 
sonable notice  of  injury  should  be  given.  .  .  .  But  such  a  contract 
should  be  reasonable,  and  not  such  as  to  be  a  snare  or  fraud  upon  the 
public.  What  is  a  reasonable  time  must  depend  upon  many  circum- 
stances- In  this  case  the  plaintiff  accompanied  the  cattle,  feeding  and 
superintending  them,  and  by  his  reply  admits  that  he  knew  of  the  in- 
jury at  the  time  of  the  unloading,  and  could  have  given  the  notice  im- 
mediately had  he  chosen  to  do  so.  Unless  the  notice  was  given  im- 
mediately it  would  be  of  no  value  to  the  defendant.  Under  these  cir- 
cumstances, we  cannot  hold  that  the  time  when  the  notice  was  to  be 
given  was  unreasonable.  Of  course  it  is  not  understood  by  the  phrase 
'  before  or  at  the  time  the  stock  is  unloaded,'  that  it  must  be  the  iden- 
tical moment,  but  so  immediately  that  the  object  sought  by  the  notice 
can  be  attained.  Nor  would  such  a  notice  be  reasonable  in  the  case  of 
an  ordinary  shipper  who  did  not  accompany  and  superintend  his  stock, 
nor  would  it  probably  prevent  a  recovery  for  injuries  sustained  which 
could  not  readily  be  seen,  and  actually  should  not  be  discovered  till 
the  time  for  giving  the  notice  had  expired.  Yet,  in  such  a  case,  good 
faith  would  require  notice  so  soon  as  the  injury  was  known." 

A  stipulation  that  no  recovery  for  injuries  to  live  stock  shall  be  had 
unless  notice  of  the  claim  be  "  given  to  some  officer  of  the  carrier  or  its 
nearest  station  agent  before  said  stock  is  delivered  from  its  place  of 
destination  or  place  of  delivery  to  the  shipper,  and  before  said  stock  is 
mingled  with  other  stock,"  was  held  unreasonable  and  ambiguous  in 
Smitha  v.  Louisville  &  N.  R.  R.,  86  Tenn.  198;  s.  c  6  S.  W.  Rep.  209 
(1887). 

1  Memphis  &  Charleston  R.  R.  v.  Holloway,  9  Baxter  (Tenn.),  188 
(1877).  In  this  case  the  loss  occurred  from  the  abstraction  of  goods 
from  a  box,  and  could  not  be  ascertained  at  the  time  of  delivery. 
Ormsby  z'.  Union  Pacific  R.  Co.,  4  Fed.  Rep.  170,  706  (1880).  This 
was  a  case  of  illness  of  live  stock. 

^  Hirshberg  v.  Dinsmore,  12  Daly  (N.  Y.),  429  (1884);  Chicago  & 
Alton  R.  R.  V.  Simms,  18  111.  App.  68  (1885);  and  see  Smitha  v.  Louis- 
ville &  N.  R.  R.,  note  1,  ante,  pp.  125,  126. 


TIME   AND   MANNER   OF   PRESENTING   CLAIMS.        12/ 

been  held  that  the  carrier  must  show  that  he  had  an  officer 
to  whom  the  notice  could  be  given,  and  at  the  place  at 
which  the  contract  required  it  to  be  given/  The  contract 
of  the  first  carrier  may  lawfully  provide  that  all  claims 
for  damages  shall  be  presented  at  the  office  of  shipment 
with  the  carrier's  receipt  or  bill  of  lading  attached  within 
a  specified  time.  In  case  the  claim  is  against  one  of  the 
connecting  lines,  the  clause  as  to  presentation  at  the  place 
of  shipment  is  not  to  be  understood  literally.  In  such 
case  the  claim  may  be  presented  to  some  agent  or  officer 
of  the  company  against  which  the  claim  is  made.^  This 
limitation  as  to  the  time  within  which  claims  must  be 
presented  cannot  be  effected  by  a  mere  notice.^  Such  a 
clause  will  not  be  extended  so  as  to  apply  to  cases  where 
the  injury  is  shown  to  have  been  caused  by  the  carrier's 
negligence,  unless  so  expressed  in  terms.*  A  contract  is 
frequently  made  that  the  carrier  will  transport  goods  from 
the  vendor  to  the  vendee,  collect  the  price  and  remit  the 
same  to  the  vendor.  A  stipulation  that  a  claim  for  loss 
of  the  goods  must  be  presented  within  a  specified  time 
has  no  application  to  the  agreement  contained  in  the  same 
contract  to  collect  and  remit  the  price,  and  a  failure  to 
present,  within  the  time  so  specified,  the  claim  for  a  breach 

^  Good  V.  Galveston,  H.  &  S.  A.  R.  Co.  (Texas),  ii  S.  W.  Rep.  854 
(1889);  Missouri  Pacific  R.  Co.  v.  Harris,  67  Texas,  166  (1886).  These 
cases  overrule  Missouri  Pac.  R.  Co.  v.  Harris,  i  Texas  Ct.  App. 
§  1257  (1882);  Texas  Central  R.  R.  v.  Morris,  i  Ibid,  §  374  (1883). 

2  U.  S.  Ex.  Co.  V.  Harris,  51  Ind.  127  (1875). 

'  Browning  v.  Long  Island  R.  R.,  2  Daly  (N.  Y.),  117  (1867).  In 
this  case  the  time  specified  (10  days)  was  held  unreasonable. 

*  Vroman  v.  American  M.  U.  Ex.  Co.,  5  Thomp.  &  Cook  (N.  Y.), 
22;  s.  C.  2  Hun,  512  (1874);  Westcott  v.  Fargo,  6  Lansing  (N.  Y.),  319; 
s.  c.  63  Barb.  349  (1872).  This  latter  case  was  affirmed  in  the  Com- 
mission of  Appeals,  61  N.  Y.  542  (1875),  on  the  ground  that  a  defense 
under  this  clause  must  be  specially  pleaded.  A  different  rule  of  plead- 
ing prevails  in  Indiana.  There  it  is  held  that  the  defense  is  available 
on  demurrer.  U.  S.  Exp.  Co.  v.  Harris,  51  Ind.  127  (1875).  It  is, 
however,  to  be  observed  that  in  the  latter  cases  the  special  contract  was 
set  out  in  the  complaint. 


128  THE   MODERN   LAW   OF   CARRIERS. 

of  the  latter  agreement  is  no  bar  to  a  recovery.^  In  sucli 
contracts  a  clause  is  frequently  added  that  the  liability  of 
the  carrier  while  the  goods  are  in  its  possession  for  the 
purpose  of  making  such  collection,  shall  be  that  "  of  ware- 
houseman." The  two  clauses  should  be  construed  to- 
gether, and  the  time  within  which  a  claim  must  be  pre- 
sented for  a  failure  to  return  the  goods  after  the  vendee 
has  refused  or  neglected  to  pay  for  them,  does  not  begin 
to  run  until  such  neglect  or  refusal.^ 

If  the  contract  provide  that  an  action  upon  it  must  be 
brought  within  sixty  days  after  the  loss,  the  time  will  not 
be  extended  by  negotiations  for  a  settlement,  even  though 
only  twelve  days  remain  after  these  are  terminated.  In 
such  case  a  failure  to  sue  within  the  sixty  days  from  the 
loss  is  a  bar  to  a  recovery.^  Still  there  seems  no  good 
reason  to  doubt  that  the  same  liberal  rules  which  have 
been  applied  to  suits  upon  policies  of  insurance  will  be 
applied  to  suits  against  carriers,  and  that  the  same  con- 
duct which  has  been  held  to  amount  to  a  waiver  in  the 
one  case,  will  be  given  the  like  effect  in  the  other.     Thus 


^  McNichol  V.  Pacific  Ex.  Co.,  12  Mo.  App.  401  (1882).  In  such 
cases  there  are  really  two  separate  and  distinct  undertakings  by  the  car- 
rier, one  to  transport  and  deliver  the  goods,  the  other  to  collect  and  re- 
mit the  price. 

^  Smith  V.  Dinsmore,  9  Daly  (N.  Y.),  188  (1880).  In  this  case  the 
clauses  under  consideration  were  as  follows:  "  In  no  event  shall  the 
Adams  Express  Company  be  liable  for  any  loss  or  damage  unless  the 
claim  therefor  shall  be  presented  to  them  in  writing  at  their  office  within 
thirty  days  after  the  date  of  the  bill  of  lading  in  a  statement  to  which 
the  receipt  given  to  the  shipper  shall  be  annexed."  "  If  any  sum  of 
money,  besides  the  charge  for  transportation,  is  to  be  collected  from 
the  consignee  on  delivery  of  the  above  described  property,  and  the  same 
is  not  paid  within  thirty  days  from  the  date  of  the  bill  of  lading,  the 
shipper  agrees  that  this  company  may  return  said  property  to  him  at  the 
expiration  of  that  time,  subject  to  the  conditions  of  this  receipt,  and 
that  he  will  pay  the  charges  for  transportation  both  ways ;  and  that  the 
liability  of  this  company  for  such  property  while  in  its  possession, 
for  the  purpose  of  making  such  collection,  shall  be  that  of  warehouse- 
man only." 

'  Thompson  v.  Chicago  &  Alton  R.  R.,  22  Mo.  App.  321  (1886). 


TIME    AND    MANNER    OF    PRESENTING    CLAIMS.        1 29 

it  is  held  that  if  the  contract  requires  that  the  claim  be 
presented  in  writing,  and  it  is  presented  orally,  and  no 
objection  on  that  account  is  made  by  the  carrier,  the  re- 
quirement as  to  writing  is  waived/  And  it  has  been  held 
that  the  time  is  to  be  reckoned,  not  from  the  day  when  the 
loss  occurs,  but  from  the  day  when  it  is  ascertained.^ 
This  last  is  a  most  reasonable  decision.  It  interprets  the 
contract,  not  literally,  but  according  to  what  may  fairly 
be  supposed  to  have  been  the  intention  of  the  parties 
when  they  made  it.  This  is  the  true  rule  of  construc- 
tion.^ 

Such  stipulations,  like  all  those  which  seek  to  limit  a 
right  of  action,  must  be  definite  in  order  to  be  effective.  A 
clause  which  provides  not  that  no  claim  shall  be  valid  un- 
less presented  within  a  specified  time,  but  merely  that  it 
must  be  presented  within  that  time  in  order  to  receive 
attention,  is  ineffective.* 

^  Bennet  v.  Northern  Pacific  Ex.  Co.,  12  Oreg.  49  (1885);  Rice  v. 
Kansas  Pacific  R.  Co.  63  Mo.  314  (1876). 

*  Ghormley  v.  Dinsmore,  51  N.  Y.  Super.  Ct.  196  (1885). 

3  See  Owen  v.  Louisville  &  N.  R  R.  (Ky.),  9  S.  W.  Rep.  698  (1888). 
An  excuse  for  not  presenting  the  claim  within  the  time  stipulated  may 
be  a  question  for  the  jury.  Glenn  v.  Southern  Exp.  Co.,  86  Tenn.  594; 
s.  c.  8  S.  W.  Reporter,  152  (1888). 

*  Dunn  V.  Hannibal  &  St.  Jo.  R.  R.,  68  Mo.  268  (1878).  In  San- 
ford  V.  Housatonic  R.  R.,  11  Cushing  (Mass.),  155  (1853),  the  contract 
contained  the  clause :  "  Consignees  of  goods  by  this  line  are  requested 
to  notice  any  errors  in  regard  to  this  line  within  twenty-four  hours,  or 
the  company  will  considc-r  their  liability  as  ended."  This  was  held  not 
to  limit  the  liability  of  the  carrier.  But  the  decision  was  placed  partly 
on  the  ground  that  the  consignee  could  not  possibly,  within  the  time 
specified,  ascertain  upon  what  line  the  loss  occurred. 


CHAPTER    VII. 
THE   carrier's   right    to    make    reasonable   rules 

AND    REGULATIONS. 

A  common  carrier  may  make  reasonable  rules  and  re- 
gulations for  the  convenient  transaction  of  business  be- 
tween himself  and  those  dealing  with  him,  either  as  pas- 
sengers or  shippers,  and  thus  to  some  extent  limit  his 
common  law  liability.  The  cases  in  which  the  carrier  s 
liability  may  be  limited  by  contract  have  already  been 
considered.  But  there  are  certain  rules  which  a  carrier 
may  make,  and  of  which  the  passenger  or  shipper  is 
bound  to  take  notice,  either  absolutely  or  when  proper 
measures  have  been  taken  to  call  attention  to  them.  Of 
these  the  one  absolute  qualification  seems  to  be  that  they 
should  be  reasonable.^ 

1  Marriott  v.  London  &  S.  W.  R.  Co.,  i  C  B.  (N.  S.)  499  (1857); 
Garton  v.  Bristol  &  N.  W.  R.  Co.,  6  C  B.  (N.  S.)  639;  s.  c.  95  Eng. 
Comm.  L.  639  (1859);  Crouch  v.  London  &  N.  W.  R.  Co.,  14  C  B.  255; 
s.  c.  78  Eng.  Comm.  L.  255  (1854);  McRae  v.  Wilmington  &  W.  R.  R., 
88  N.  Car.  526;  s.  c  43  Am.  Rep.  745  (1883);  South  Fla.  R.  Co.  v. 
Rhoads  (Fla  ),  3  Lawyer's  Rep.  Ann.  374  (1889);  Sandford  v.  R.  R.  Co., 
24  Penn.  378  (1855).  In  this  case  it  was  held  that  the  power  given  by 
the  charter  of  a  railway  company  to  regulate  the  transportation  upon 
its  road,  did  not  give  the  right  to  grant  exclusive  privileges  to  a  particu- 
lar Express  Company.  The  court  said,  page  1%^  :  "  If  it  [the  com- 
pany] possessed  this  power  it  might  build  up  one  set  of  men  and  des- 
troy others;  advance  one  kind  of  business  and  break  down  another,  and 
might  make  even  religion  and  politics  the  tests  in  the  distribution  of  its 
favors.  .  .  .  The  rights  of  the  people  are  not  subject  to  any  such 
corporate  control." 

Rogers  Locomotive  Works  v.  Erie  R.  Co.,  5  C.  E.  Green  (N.  J.),  379 
(1869);  State  V.  Hartford  &  N.  H.  R.  R.,  29  Conn.  538  (1861).  In  this 
latter  case  the  court  held  that  a  regulation  made  by  the  carrier  in  favor 
of  a  connecting  railroad,  excluding  it  from  making  its  usual  connec- 
tions with  a  steamboat  line  was  void,  and  that  the  carrier  could  be 
compelled  by  mandamus  to  deliver  freight  and  transport  passengers 


REASONABLE   RULES   AND   REGULATIONS.  I3I 

The  reasonableness  of  tiie  rule  generally  depends 
upon  the  facts  of  the  particular  case.  Where  its  reason- 
ableness is  in  doubt,  the  burden  of  showing  that  the  rule 
is  reasonable  is  on  the  carrier.^  Any  general  language 
in  the  carrier's  charter  giving  him  the  power  to  establish 
rules  and  regulations  will,  however,  be  limited  by  the  re- 
maining portions  of  the  charter  so  as  to  exclude  the  power 
to  make  rules  inconsistent  with  his  duties  as  a  common 


to  the  steamboat  wharf  to  which  its  tracks  extended.     See  the  language 
of  the  court  in  National  Docks  R.  Co.  v.  Central  R.  R.,  32  N.  J.  Eq. 

755  (i88o)- 

On  the  other  hand  it  was  well  said  by  the  court  in  State  v.  Chovin, 
7  Iowa,  204,  208  (1858):  "All  regulations  will  be  deemed  reasonable 
which  are  suitable  to  enable  the  company  to  perform  the  duties  it  un- 
dertakes, and  to  secure  its  own  just  rights  in  such  employment;  and 
also  such  as  are  necessary  and  proper  to  insure  the  safety  and  promote 
the  comfort  of  passengers." 

To  the  same  effect  is  Commonwealth  v.  Power,  7  Mete.  596  (1844). 

The  law  on  the  general  subject  under  consideration  was  thus  stated 
in  Vedder  z/.  Fellows,  20  N.  Y.  126,  131  (1859):  "I  do  not  agree  that 
the  passengers  upon  our  railroads  deprive  themselves  of  the  right  to 
complain  of  an  unreasonable  practice  by  voluntarily  taking  seats  in  the 
cars.  The  railroads  are  public  institutions,  established  by  law  for  pub- 
lic accommodation.  They  have,  except  where  they  adjoin  or  are  near 
navigable  rivers,  superseded  all  other  extensive  ways  of  conveyance,  and 
have  thus  rendered  travelers  and  owners  of  freight  in  a  great  measure 
dependent  upon  their  means  of  locomotion.  The  companies  have  thus 
public  duties  to  perform,  and  they  ought  not  to,  and  in  my  opinion  they 
cannot  legally,  subject  either  passengers  or  freight  owners  to  regulations 
that  are  palpably  unreasonable." 

In  England  a  contract  which  entirely  discharges  the  carrier  from  all 
liability  is  unreasonable  and  void.  McManus  v.  Lancashire  &  Y.  R. 
Co.,  4  H.  &  N.  327  (1859);  Gregory  z;.  West  Midland  R.  Co.,  2  H.  &C. 
944  (1864). 

But  where  a  carrier  undertakes  the  whole  carriage  the  shipper  is  not 
bound  by  the  rules  of  a  second  carrier  over  whose  route  the  goods  are 
forwarded.     Railroad  Co.  v.  Pratt,  22  Wall.  123  (1874). 

A  rule  which  requires  a  passenger  who  has  put  too  much  fare  in  a 
lock-box  to  go  to  the  end  of  the  route  to  correct  his  mistake  is  unrea- 
sonable, if  it  can  be  corrected  on  the  spot  as  by  the  fare  of  another 
passenger.  Corbett  v.  Twenty-third  St.  R.  Co.,  42  Hun  (N.  Y.),  587 
(1886). 

In  Hicks  v.  Hannibal  &  St.  J.  R.  R.,  68  Mo.  329  (1878),  it  was  held, 
the  rule  or  regulation,  if  relied  on  as  a  defense,  must  be  pleaded. 

^  Peek  V.  N.  Staffordshire  R.  Co.,  10  H.  of  L.  Ca.  473  (1862);  Mar- 
riott V.  London  &  S.  W.  R.  Co.,  i  C  B.  (N.  S.)  499  (1857). 


132  THE   MODERN    LAW    OF    CARRIERS. 

carrier.''  The  reasonableness  of  a  rule  adopted  by  a  car- 
rier is  a  question  of  law  to  be  decided  by  the  court.^  If, 
however,  the  facts  were  in  dispute  the  question  would  be- 
come a  mixed  question  of  law  and  fact  to  be  decided  by 
the  jury  under  proper  instructions  from  the  court. 

SECTION   I. 

PROCURING  TICKETS   BEFORE   ENTERING   THE   CARS. 

A  railroad  company  has  the  right  to  require  a  passen- 
ger to  procure  and  pay  for  a  ticket  before  entering  the 

car.^ 

» 

1  Chicago  &  N.  W.  R.  R.  v.  People,  56  111.  365  (1870).  This  was 
an  appeal  from  a  judgment  of  mandamus,  requiring  a  railroad  company 
to  deliver  to  the  consignee,  grain  consigned  to  a  particular  elevator  upon 
its  line.  Held  that  a  contract  or  regulation  made  by  the  carrier  to  de- 
liver grain  only  to  certain  elevators  was  inconsistent  with  its  duty  as  a 
carrier,  and  therefore  void;  but  that  the  carrier  could  not  be  compelled 
to  deliver  to  elevators  not  upon  its  line,  though  upon  a  line  of  road 
with  which  it  commonly  connected.     The  court  said,  p,  383: 

"It  is  claimed  by  counsel  that  the  charter  of  respondent  authorizes 
it  to  make  such  contracts  and  regulations  as  might  be  necessary  in  the 
transactions  of  its  business.  But,  certainly,  we  cannot  suppose  the 
legislature  intended  to  authorize  the  making  of  such  rules  or  contracts 
as  would  defeat  the  very  object  it  had  in  view  in  granting  the  charter. 
The  company  can  make  such  rules  and  contracts  as  it  pleases,  not  incon- 
sistent with  its  duties  as  a  common  carrier,  but  it  can  go  no  further,  and 
any  general  language  which  its  charter  may  contain  must  necessarily  be 
construed  with  that  limitation.  .  .  .  The  principle  that  a  railroad 
company  can  make  no  injurious  or  arbitrary  discrimination  between  in- 
dividuals in  its  dealings  with  the  public,  not  only  commends  itself  to 
our  reason  and  sense  of  justice,  but  is  sustained  by  adjudged  cases." 

2  South  Florida  R.  Co.  v.  Rhoads  (Fla.),  3  Lawy.  Rep.  Ann.  734 
(1889);  Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420  (1867);  Vedder 
V.  Fellows,  20  N.  Y.  126  (1859);  Louisville,  N.  &  G.  S.  R.  Co.  v.  Flem- 
ing, 14  Lea,  128;  s.  c.  18  Am.  &  Eng.  R.  Cas.  347  (1884);  Pierce  v. 
Randolph,  12  Texas,  290  (1854).     See  post,  Ch.  VII,  sect.  6. 

3  Burlington  &  M.  R.  R.  v.  Rose,  11  Neb.  177  (1881);  State?/. 
Goold,  53  Me.  279  (1865).  In  this  case  the  court  said  (p.  281):  "  Rail- 
road corporations  have  an  undoubted  right  to  fix  and  determine  the 
rates  of  fare  on  their  roads  within  the  limits  specified  in  their  charters 
or  by  existing  laws.  They  have  also  an  undoubted  right  to  make  rea- 
sonable regulations  as  to  the  time,  place  and  mode  of  collecting  the 
same  from  passengers.  They  may  reasonably  require  payment  before 
the  arrival  of  the  train  at  the  station  where  the  passenger  is  to  leave  the 


PROCURING   TICKETS   BEFORE   ENTERING   CARS.       1 33 

The  existence  of  such  a  regulation  will  not  be  pre- 
sumed. It  must  be  proved  by  the  carrier.^  It  is  reason- 
able to  enforce  this  regulation  by  requiring  passengers 
who  have  not  purchased  tickets  to  pay  in  the  car  a  sum 
additional  to  that  usually  required.'  This  regulation  is 
sometimes  put  in  the  form  of  a  charge  made  to  those  pay- 
ing in  the  car  which  is  in  addition  to  the  usual  fare  fixed 
by  the  company.     Sometimes  it  is  put  in  the  form  of  a 

cars.  We  see  no  reason  to  question  their  right  to  require  payment  in 
advance,  to  be  made  at  a  convenient  office,  and  at  convenient  times; 
certainly,  where  there  is  no  positive  interdict  to  entering  the  cars  with- 
out a  ticket,  as  in  this  case.  There  is  neither  hardship  nor  unfairness 
toward  the  passenger  who,  ordinarily,  can  pay  his  fare  and  procure  his 
ticket  without  trouble  or  delay,  at  the  office.  But  to  the  company  it  is 
something  more  important  than  mere  convenience  that  such  regulations 
should  be  enforced.  It  is  important  in  simplifying  accounts.  It  is  im- 
portant to  promote  and  secure  safety,  by  allowing  time  to  the  conductor 
to  attend  to  his  proper  duties  on  the  train,  and  which  would  be  often 
seriously  interfered  with  if  his  time  was  taken  up  in  collecting  fares  and 
exchanging  money  and  answering  questions.  It  is  highly  important  as  a 
check  against  mistakes  or  fraud  on  the  part  of  the  conductors,  and  as 
a  guard  against  imposition  by  those  seeking  a  passage  from  one  station 
to  another  without  payment."  St.  Louis,  Alton  &  T.  H.  R.  R.,  43  111. 
176  (1867);  Hilliard  v.  Goold,  34  N.  H.  230  (1856);  Crocker  z^.  New 
London,  W.  &  P.  R.  R.,  24  Conn.  249  (1855). 

In  Stephen  v.  Smith,  29  Vermont,  160  (1857),  the  court  said  (p.  163): 
"  The  discrimination  in  fare  which  is  made  by  this  company  when 
tickets  are  purchased  at  the  several  stations,  or  when  paid  the  conduc- 
tor in  the  cars,  is  reasonable,  as  affording  proper  checks  upon  its  ac- 
counting officers,  and  which  they  have  a  right  to  enforce.  While  the 
law  requires  of  the  company  the  adoption  of  such  regulations  as  are 
necessary  for  the  safety  and  convenience  of  passengers  in  their  trains, 
they  have  also  the  right  to  adopt  such  reasonable  regulations  as  are 
necessary  for  their  own  security;  and  these  regulations  are  to  be  mutually 
observed.  If  they  are  not  complied  with  by  passengers,  the  company 
may  not  only  refuse  them  admission  within  the  cars,  but  if  they  are 
within  they  may  remove  them."  Southern  Kansas  R.  Co.  v.  Hinsdale, 
38  Kans.  507;  s.  c  16  Pac.  Rep.  937  (1888). 

^  Avery  V.  Atchison,  Topeka  &  S.  F.  R.  R.,  11  Kans.  448  (1873). 

=•  R.  R.  Co.  V.  Skillman,  39  Ohio  St.  444  (1883);  Toledo  W.  &  W.  R. 
Co.  V.  Wright,  68  Ind.  586  (1879);  State  v.  Chovin,  7  Iowa,  204  (1858); 
Chicago,  B.  &  Q.  R.  R.  v.  Parks,  18  III.  460  (1857).  In  the  last  case 
it  was  held  that  a  passenger  who  had  paid  one  such  additional  charge 
to  be  carried  to  one  station  and  decided  there  to  go  on,  could  be  law- 
fully charged  another. 


134  THE   MODERN    LAW    OF   CARRIERS. 

deduction  from  the  nominal  fare  made  to  those  buying- 
tickets  at  the  station.^ 

In  both  cases  the  substance  of  the  regulation  is  iden- 
tical, and  would  undoubtedly  be  so  considered  by  the 
courts  unless  the  form  were  made  material  by  some 
Statute,  fixing  the  highest  rate  of  fare  per  mile  which  the 
carrier  can  charge.  Such  Statutes  generally  contain  a 
provision  that  a  sum  in  addition  to  this  legal  rate  may  be 
charged  to  those  who  do  not  buy  tickets  before  entering- 
the  cars,  provided  that  a  reasonable  opportunity  to  pur- 
chase a  ticket  has  been  afforded  before  the  departure  of 
the  train.^ 

In  the  absence  of  such  a  proviso,  the  rate  charged  in 
the  cars  must  not  exceed  the  statutory  rate.^ 

It  has  been  held  that  in  the  absence  of  such  a  statute 
the  company  is  under  no  obligation  to  keep  ticket  offices 
open  or  afford  any  opportunity  to  passengers  to  purchase 
tickets  at  such  offices.  The  same  cases  hold  that  in  the 
absence  of  legislative  restriction  upon  the  rate  of  fare,  a 
carrier  may  require  passengers  who  are  unable  to  pur- 
chase tickets,  owing  to  the  office  not  being  open,  to  pay 
more  in  the  cars  than  they  would  have  been  obliged  to  pay 
at  the  station.^ 

1  State  V.  Goold,  53  Me.  279  (1865);  Swan  v.  Manchester  &  L.  R. 
R.,  132  Mass.  116  (1882). 

2  Porter  v.  N.  Y.  Central  R.  R.,34  Barb.  (N.  Y.)  353  (1861);  Nellis 
V.  The  Same,  30  N.  Y.  505  (1864);  Chase  v.  The  Same,  26  N.  Y.  523 
(1863);  Missouri  Pacific  R.  Co.  v.  McClanahan,  66  Texas,  530  (1886); 
Everett  v.  Chicago,  R.  I.  &  P.  R.  Co.,  69  Iowa,  15  (1886);  Contra,  De 
Lucas  V.  New  Orleans  &  C.  R.  R.  Co.,  38  La.  An.  930  (1886). 

3  Smith  V.  Pittsburg,  F.  W.  &  C  R.  R.,  23  Ohio  St.  10  (1872). 

*  Crocker  v.  New  London  &  W.  &  P.  R.  R.,  24  Conn.  249  (1855). 
Bordeaux  v.  Erie  R.  Co.,  8  Hun  (N.  Y.),  579  (1876).  In  this  latter  case 
the  court,  after  citing  some  decisions  in  actions  against  the  New  York 
Central  R.  R.  Co.,  said:  "  These  cases  were  all  actions  for  a  penalty  given 
by  statute  for  taking  illegal  fares.  The  legal  fare  fixed  by  statute 
allowed  said  company  to  require  the  payment  of  five  cents  in  addition 
to  such  fare,  of  any  passenger  who  entered  the  cars  without  first  having 
purchased  a  ticket  for  that  purpose,  at  any  station  where  a  ticket  office 


PROCURING   TICKETS   BEFORE   ENTERING   CARS.       1 35 

It  is  a  curious  illustration  of  the  American  disposition 
to  override  individual  rights,  and  subject  them  to  real  or 
imagined  public  convenience,  that  the  unfortunate  pas- 
senger who  tried  to  vindicate  his  rights  in  Bordeaux  v. 
Krie  Railway  Co.,  should  have  been  subjected  to  an  un- 
merciful snubbing  by  the  court. 

But  other  cases  and  with  better  reason  lay  down  a  dif- 
ferent rule,  and  hold  that  the  company  has  no  right  to 
exact  a  rate  of  fare  in  its  cars  higher  than  that  charged 
for  tickets  at  the  of&ce,  when  it  deprives  a  passenger  of 
the  power  to  buy  a  ticket  by  keeping  the  office  closed  up 
to  the  time  fixed  for  the  departure  of  the  train ;  ^  or  by 

is  established  and  open;  and  said  statute  required  the  said  company 
should  keep  the  said  office  open  at  least  one  hour  prior  to  the  departure 
of  each  passenger  train  from  such  station.  But  there  is  no  such  statute 
relating  to  the  Erie  Railway;  and  the  charge  of  five  cents  required  when 
the  fare  is  paid  to  the  conductor,  is  not  an  enhancement  of  the  legal 
fare,  but  is  within  the  limit  of  such  fare.  On  the  contrary,  the  price  of 
tickets  sold  at  the  offices  is  an  abatement  of  the  legal  fare  as  fixed 
where  the  payment  is  made  on  the  cars.  .  .  .  How  can  the  plaintiff 
base  a  claim  to  dictate  the  fare  he  should  pay,  upon  his  failure  to  find 
the  defendant's  ticket  office  open  when  he  wished  to  purchase  a 
ticket  ?  .  .  .  The  courts  cannot  say  when  or  for  how  long  a  time 
they  should  open  such  offices  each  day  or  otherwise.  If  the  plaintiff 
failed  for  any  cause  to  procure  a  ticket,  he  had  no  right  to  get  into  the 
defendant's  cars,  except  upon  the  implied  engagement  on  his  part 
to  pay  the  fare  fixed  for  and  required  of  passengers  without  tickets." 

In  the  Crocker  case,  the  court  held  that  the  establishment  of  a  ticket 
office,  and  fixing  the  rate  of  fare  for  persons  buying  tickets  there,  was  a 
mere  proposal  which  the  company  could  withdraw  at  any  time,  and  that 
it  was  withdrawn  when  the  ticket  office  was  closed.  This  opinion  was 
criticised  in  Jeffersonville  R.  R.  v.  Rogers,  28  Ind.  i  (1867);  and  in 
St.  Louis,  A.  &  C.  R.  R.  v.  Dalby,  19  111.  353  (1857);  De  Lucas  v.  New 
Orleans  &  Carrolton  R.  R.,  38  La.  Ann.  930  (1886);  Curlt'.  Chicago,  R. 
I.  &  P.  R.  Co.,  63  Iowa,  417  (1884). 

^  Chicago,  B.  &  Q.  R.  R.  v.  Parks,  18  111.  460  (1857);  Chicago  & 
Alton  R.  R.  V.  Flagg,  43  111.  364  (1867);  DuLaurans  v.  St.  Paul  &  Paci- 
fic R.  R.,  15  Minn.  49  (1870);  Jeffersonville  R.  R.  Co.  v.  Rogers,  38 
Ind.  116  (1871);  s.  c.  28  Ind.  I  (1867);  Paine  v.  C,  R.  L  &  P.  R.  Co., 
45  Iowa,  569  (1877).  Ii^  Pullman  Palace  Car  Co.  v.  Reed,  75  111.  125 
(1874),  the  court  say  (p.  130):  ''It  is  well  recognized  law,  that  carriers 
of  passengers  may  lawfully  require  those  seeking  to  be  carried  to  pur- 
chase tickets,  when  convenient  facilities  to  that  end  are  afforded  by  the 
carrier,  to  exhibit  them  to  persons  designated  by  the  carrier  for  that 
purpose,  and  to  surrender  them  after  securing  their  seats  in  the  car  or 


136        THE  MODERN  LAW  OF  CARRIERS. 

not  maintaining  an  office  at  the  station/  Unless  the 
passenger  have  a  reasonable  opportunity  to  buy  a  ticket 
the  carrier  cannot  lawfully  exact  an  additional  compensa- 
tion on  the  ground  that  he  has  no  ticket.^ 

It  would  seem  that  the  latter  rule  is  right  on  prin- 
ciple. The  fallacy  involved  in  the  opinions  of  the  court 
in  the  cases  first  stated  consists  in  the  assumption  that 
there  is  no  limit  but  the  statutory  one,  to  the  rate  of  fares 
that  a  carrier  may  lawfully  charge.  It  is,  however,  well 
settled  that  a  carrier  cannot  lawfully  charge  more  than 
a  reasonable  sum  for  the  carriage  of  goods  or  passengers. 


other  vehicle  used  for  transportation,  when  required  by  the  person  in 
immediate  charge  of  the  transportation.  Such  requirements  cause  but 
little,  if  any,  inconvenience  to  the  public,  and  may  be  indispensable  to 
enable  the  carrier  to  protect  itself  against  loss  through  the  knavery  of 
dishonest  employees." 

In  the  Jeffersonville  case  the  court  say:  "  If  the  plaintiff  properly 
applied  for  a  ticket  and  was  unable,  from  any  cause  attributable  to  the 
company  or  its  agents,  to  purchase  one,  he  had  a  right,  whatever  that 
cause  might  have  been,  to  be  carried  at  the  ticket  rates." 

In  the  Du  Laurans  case  the  court  held  distinctly  that  the  shutting 
the  ticket  office  did  not  constitute  a  withdrawal  of  the  previous  offer  to 
carry  passengers  who  should  purchase  tickets  there  at  a  certain  fare,  and 
that  the  company  could  not  take  advantage  of  its  own  wrong  in  closing 
the  ticket  office,  but  was  bound  to  keep  it  open  for  a  reasonable  time. 
What  would  be  a  reasonable  time  to  allow  passengers  an  opportunity  to 
procure  tickets  was  held  to  be  a  question  for  the  jury  under  proper  in- 
structions from  the  court. 

In  Nellis  z/.  N.  Y.  Central  R.  R.,  30  N.  Y.  505  (1864),  the  court 
said:  "  To  compel  a  passenger  to  pay  a  penalty  because  the  company 
had  deprived  him  of  the  power  to  travel  for  the  regular  fare,  would  be 
so  oppressive  and  unjust  that  it  would  require  a  positive  provision  of  a 
legislative  act  to  induce  any  tribunal  to  sanction  it.  The  statute  is 
open  to  no  such  construction.  The  extra  fare  can  only  be  demanded 
when  the  passenger  fails  to  purchase  his  ticket  at  an  established  ticket 
office  that  is  open.  If  it  is  not  open,  no  ticket  can  be  procured,  and 
no  right  exists  to  demand  the  extra  fare."  In  this  case  the  train  left  at 
an  hour  in  the  night  at  which  the  railroad  company  was  not  required  to 
open  its  ticket  office.  Hall  e^.  South  Carolina  R.  Co.,  28  S.  Car.  261; 
s.  c.  5  S.  Ea.  Rep.  623  (1887);  Brown  v.  Kansas  City,  F.  S.  &  G.R.  R., 
38  Kans.  634;  s.  c  16  Pac.  Rep.  942  (1888). 

1  Poole  V.  Northern  Pacific  R.  R.,  16  Oregon,  261  (1888). 

2  Hall  7'.  South  Car.  R.  Co.,  28  S.  Car.  261;  s.  c  5  South  East. 
Rep.  623  (1887). 


PROCURING   TICKETS   BEFORE   ENTERING    CARS.       1 37 

What  in  a  given  case  will  be  a  reasonable  charge  is 
not  always  easy  to  determine.  But  this  much  would  seem 
to  be  clear  that,  as  against  the  company,  the  rate  it  fixes 
for  the  price  of  a  ticket  from  one  place  to  another,  is  the 
reasonable  compensation  for  carrying  a  passenger  between 
the  two.  Hence  it  follows  that  the  company  cannot  law- 
fully charge  more.  The  cases  referred  to  superadd  one 
qualification  to  this  rule — namely,  that  the  carrier  may 
also  charge  a  reasonable  sum  for  the  trouble  and  risk  to 
which  it  is  put  by  the  payment  of  fares  in  the  cars,  pro- 
vided it  gives  a  reasonable  opportunity  to  pay  them  else- 
where. This  proviso  on  principle  is  just  as  peremptory 
in  the  case  of  a  rate  of  fare  fixed  by  the  company  as  one 
fixed  by  statute.  The  passenger  who  refuses  to  pay  this 
additional  sum,  when  its  payment  is  lawfully  required, 
is  in  the  same  plight  as  if  he  had  refused  altogether. 

The  question  whether  the  carrier  is  bound  to  keep 
the  ticket  ofi&ce  open  after  the  time  fixed  for  the  departure 
of  the  train,  and  until  its  actual  departure,  has  been  much 
discussed,  and  the  decisions  upon  it  are  conflicting.^     But 

^  In  Chicago,  B.  &  Q.  R.  R.  v.  Parks,  18  111.  460  (1857),  the  court 
say  :  "To  justify  the  company  in  making  this  discrimination  in  the  fare 
against  the  passenger  who  neglects  to  purchase  a  ticket  at  the  company's 
office,  the  company  must  see  to  it  that  the  fault  was  not  that  of  its  own 
agent,  instead  of  the  passenger.  To  justify  this  discrimination  every 
reasonable  and  proper  facility  must  be  afforded  the  passenger  to  procure 
his  ticket.  They  must  furnish  a  convenient  and  accessible  place  for  the 
sale  of  the  tickets,  with  a  competent  person  in  attendance  ready  to  sell 
them,  which  should  be  open  and  accessible  to  all  passengers  for  a  reason- 
able time  before  the  departure  of  each  train,  and  up  to  the  time  of  its 
actual  departure,  so  that  it  shall  really  be  a  case  of  neglect,  and  not  of 
necessity,  on  the  part  of  the  passenger,  and  not  the  fault  of  the  com- 
pany."    s.  p.,  St.  Louis,  A.  &  C.  R.  R.  v.  Dalby,  19  111.  353  (1857). 

But  in  St.  Louis,  Alton  &  Terre  Haute  R.  R.  v.  South,  43  111.  176 
(1867),  the  court  laid  down  the  rule  that  railroad  companies  are  required 
to  keep  open  their  offices  for  the  sale  of  tickets  to  passengers  for  a  rea- 
sonable time  before  the  departure  of  each  train,  and  up  to  the  time 
fixed  by  its  published  rules  for  its  departure,  and  not  up  to  the  time  of 
actual  departure.  And  Breese,  J.,  commenting  upon  the  opinion  in 
Chicago,  B.  &  Q.  R.  R.  v.  Parks,  18  111.  460  (1857),  said: 

"In  speaking,  then,  of   the  time  of   the   actual   departure  of  a  train^ 


138  THE    MODERN    LAW    OF    CARRIERS. 

if  the  statute  require  it  "to  keep  the  office  open  at  least 
one  hoiir  prior  to  the  departure  of  each  train,"  it  must 
keep  the  office  open  until  the  train  departs,  even  though 
it  arrive  late.^ 

Some  Railroad  Companies  in  America  allow  passen- 
gers to  ride  on  freight  trains,  but  require  them  in  such 
cases  to  purchase  tickets  at  a  station  before  entering  the 
train.     Such  a  regulation  is  reasonable.'^     Even  in  such  a 

up  to  which  the  ticket  office  must  be  kept  open,  the  court,  unquestion- 
ably, meant  to  be  understood  as  referring  to  the  published  fixed  time 
which  everybody  knew.  The  presumption  being  that  trains  will  arrive 
and  depart  on  the  schedule  time,  which  time  is  notorious,  no  rule  should 
be  established  that  should  apply,  without  much  hardship  and  great  incon- 
venience, to  the  departure  of  trains  not  on  time.  We  do  not  recognize 
any  right  in  any  person  to  apply  at  a  railroad  ticket  office  after  the  time 
fixed  and  published  for  the  departure  of  a  train,  and  demand  the  same 
rights  and  privileges  accorded  to  those  who  come  at  the  proper  time  for 
their  tickets.  It  is  well  known  that  trains  are  sometimes  delayed  for 
hours,  and  that  it  is  unavoidable.  Would  it  not  be  going  too  far  to  re- 
quire the  companies  controlling  them,  to  keep  an  agent  at  his  post 
during  all  this  delayed  time  ? "  s.  p.,  Swan  v.  Manchester  &  L.  R.  R., 
132  Mass.  116  (1882). 

In  the  South  case  it  was  also  held,  that  when  a  passenger  willfully 
neglects  to  purchase  a  ticket  as  required,  before  entering  the  train,  he 
cannot  be  expelled  at  a  place  other  than  a  regular  station.  This  ruling 
was,  however,  under  a  special  statute  of  Illinois. 

In  other  cases  it  has  been  held  that  the  ticket  office  should  be  kept 
open  until  the  departure  of  the  train.  Croker  v.  New  London  R.  R., 
24  Conn.  249  (1855);  HiUiard  v.  Goold,  34  N.  H.  230  (1856).  The 
statute  of  Texas  requires  the  company  to  keep  the  office  open  for  half 
an  hour  prior  to  the  departure  of  the  train.  Missouri  Pacific  Ry.  Co. 
V.  McClanahan,  66  Texas,  530  (1886). 

*  Porter  v.  N.  Y.  Central  R.  R.,  34  Barb.  (N.  Y.)  353  (1861). 

"^  Cleveland,  Columbus  &  Cin.  R.  R.  v.  Bartram,  ii  Ohio  St.  457 
(i860);  Indianapolis,  P.  &  C.  R.  Co.  v.  Rinard,  46  Ind.  293  (1874).  In  the 
latter  case  the  court  said:  "  Railroad  companies  may,  doubtless,  discrimi- 
nate between  the  amount  of  fare  where  a  ticket  is  purchased  and  where  it 
is  paid  upon  the  train.  Perhaps  they  could  make  regulations  by  which  no 
one  could  be  carried  at  all  on  trains  carrying  passengers  without  having 
previously  procured  a  ticket.  But  if  they  could  make  such  regulations 
still  they  would  have  no  right  to  discriminate  between  persons,  and  sell 
tickets  to  some  and  refuse  others,  without  some  just  cause.  A  person 
having  duly  applied  for  a  ticket  and  having  been  refused,  without  just 
cause,  would  have  the  same  right  to  be  carried  upon  paying,  or  offering 
to  pay,  the  ticket  rate  of  fare,  as  if  he  had  previously  purchased  a 
ticket." 


PRODUCTION   AND   SURRENDER   OF  TICKETS.  1 39 

case  it  is  held  that  an  opportunity  to  purchase  a  ticket 
must  be  aJEforded.^ 

SECTION   11. 

REQUIRING  TICKETS  TO  BE  SHOWN  AND  SURRENDERED. 

A  carrier  may  lawfully  require  passengers  to  exhibit 
their  tickets  whenever  called  upon  to  do  so  by  the  con- 
ductor of  the  train,  or  proper  officer  of  the  boat.  A  re- 
fusal to  comply  with  this  regulation  will  justify  the  car- 
rier in  removing  the  passenger  from  the  train,  even  though 
he  has  paid  his  fare.^ 

It  has  been  held  that  the  officers  of  a  steamboat  were 
justified  in  detaining,  for  a  reasonable  time,  a  passenger 
who  refused  to  produce  his  ticket,  in  order  to  enquire  into 
the  facts  of  the  case,  and  that  his  having  lost  his  ticket 

^  Illinois  Central  R.  R.  v.  Johnson,  67  111.  312  (1873);  Illinois  Cen- 
tral R.  R.  V.  Sutton,  53  111.  399  (1870);  St.  Louis  &  S.  E.  R.  R.  v. 
Myrtle,  51  Ind.  566  (1875).  In  the  latter  case  the  court  laid  down  the 
rule,  that  a  railroad  company  has  a  right  to  adopt  a  regulation  that  all 
persons  who  travel  on  a  freight  train  shall  procure  a  ticket  before  en- 
tering the  cars;  but  such  a  regulation  imposes  upon  the  company  the 
duty  of  having  the  ticket  ofifice  open  a  sufficient  length  of  time  before 
the  departure  of  the  train  to  enable  passengers  to  procure  tickets.  Not- 
withstanding such  regulation  on  the  part  of  the  company,  if  a  person 
desiring  to  take  passage  upon  a  freight  train,  endeavored  to  procure  a 
ticket  but  could  not  do  so  in  consequence  of  the  absence  of  the  agent, 
he  had  a  right  to  travel  on  such  train  by  paying,  or  offering  to  pay,  the 
usual  fare.  See,  also,  Indianapolis  &  St.  L.  R.  R.  v.  Kennedy,  77  Ind. 
507  (1881). 

""  Louisville,  N.  &  G.  S.  R.  R.  v.  Fleming,  14  Lea  (Tenn.),  128 
(1884);  Willetts  z/.  Buffalo  &  Rochester  R.  R.,  14  Barb.  (N.  Y.)  585 
(1853);  Havens  z'.  Hartford  &  N.  Haven  R.  R.,  28  Conn.  69(1859); 
Hibbard  v.  N.  Y.  &  Erie  R.  R.,  15  N.  Y.  455  (1857);  De  Lucas  v.  New 
Orleans  &  Carrolton  R.  R.,  38  La.  Ann.  930  (1886);  Bennett  v.  Rail- 
road Co.,  7  Phil.  II  (1868);  Pullman  Palace  Car  Co.  v.  Reed,  75  111. 
125  (1874).  In  thi<i  latter  case,  however,  the  court  held  that  if  the  con- 
ductor knew  that  the  passenger  had  purchased  a  ticket  and  lost  it,  and 
that  owing  to  its  character  (a  sleeping  car  ticket  good  only  for  a  partic- 
ular berth  and  night)  there  was  no  danger  of  its  being  used  by  any  one 
else,  a  removal  from  the  car  was  unlawful.  In  the  Willets  case  the  re- 
fusal to  show  the  ticket  was  due  to  the  negligence  of  the  father  of  an 
insane  passenger  who  left  his  son  in  the  train  unguarded. 


I40  THE   MODERN   LAW   OF   CARRIERS. 

furnished  no  excuse  for  his  not  paying  his  fare  again,  and 
that  the  fact  that  he  was  not  asked  for  his  ticket  on  the 
boat  warranted  a  finding  that  he  knew  he  was  to  give  it 
up  when  he  left  the  boat.^ 

But  a  carrier  cannot  imprison  or  detain  a  passenger 
Avho,  after  the  transit  is  completed,  is  unable  to  produce 
his  ticket.  The  price  of  transportation  is  a  debt,  and  the 
carrier  has  no  lien  on  the  person  of  the  passenger  for  this 
sum.^ 

So  the  fact  that  the  conductor  knows  that  the  passen- 
ger has  had  a  ticket,^  or  is  in  the  habit  of  using  a  com- 
mutation ticket  regularly,  which  has  not  expired,  will  not 
prevent  the  enforcement  of  such  a  regulation.* 

In  such  case,  however,  the  commuter  is  entitled  to  a 
reasonable  time  to  search  for  his  ticket,  and  his  expulsion 
wdthout  allowing  him  such  time  is  unlawful.^ 

In  the  cases  that  have  arisen  in  reference  to  commuta- 
tion tickets  this  rule  was  expressed  on  their  face.  But 
the  other  authorities  already  referred  to  do  not  rest  upon 
the  validity  of  such  a  contract,  but  upon  the  reasonable- 

1  Standish  v.  Narragansett  S.  S.  Co.,  iii  Mass.  512  (1873).  The 
weight  of  authority  is  that  the  loss  of  a  ticket  does  not  excuse  the  pas- 
senger from  compliance  with  the  rule.  In  such  case  he  must  pay  fare 
or  leave  the  train.  Louisville,  N.  &  G.  S.  R.  R.  v.  Fleming,  14  Lea 
(Tenn.),  128  (1884).  See  post,  Ch.  VII,  sect.  9.  It  was,  however,  held 
otherwise  in  Butler  v.  Manchester,  S.  &  L.  R.  Co.  (Eng.  Court  of 
Appeals),  28  Am.  Law  Reg.  81  (1888);  Jerome  v.  Smith,  48  Vt.  230 
(1876);  Cresson  v.  Philadelphia  &  R.  R.  R.,  11  Phil.  597  (1875). 

2  Lynch  v.  Metropolitan  Elevated  R.  Co.,  90  N.  Y.  77  (1882).  In 
this  latter  case  the  regulation  of  the  company  was  that  the  ticket  should 
be  surrendered  as  the  passenger  left  its  station  at  the  end  of  his  journey. 
He  lost  his  ticket  and  refused  to  pay  his  fare  a  second  time.  It  was 
held  that  it  was  unlawful  for  the  company  to  detain  him. 

=»  Hibbard  v.  N.  Y.  &  Erie  R.  R.,  15  N.  Y.  455  (1857). 

♦  Ripley  v.  New  Jersey  R.  R.  &  T.  Co.,  31  N.  J.  L.  388  (1866); 
Downs  V.  N.  Y.  &  N.  Haven  R.  R.,  36  Conn.  287 '(1869);  Crawford  v. 
Cincinnati,  H.  &  D.  R.  R.,  26  Ohio  St.  580  (1875);  Cresson  v.  Philadel- 
phia &  R.  R.  R.,  II  Phila.  597  (1875). 

5  Maples  V.  N.  Y.  &  N.  H.  R.  R.,  38  Conn.  557  (1871);  Louisville, 
N.  &  G.  S.  R.  R.  V.  Fleming,  14  Lea  (Tenn.),  128  (1884).  In  this  latter 
case  the  passenger  was  not  a  commuter. 


PRODUCTION   AND   SURRENDER   OF  TICKETS.         I41 

ness  of  the  regulation  considered  as  a  rule  made  by  tlie 
carrier.  So  a  custom  which  prevails  on  a  railroad,  that  the 
conductor  should  take  up  the  ticket  soon  after  the  begin- 
ning of  the  journey,  and  give  the  passenger  a  check  in- 
stead, is  reasonable.^ 

It  is  also  reasonable  to  require  that  the  passenger 
should  surrender  his  ticket  immediately  after  leaving  the 
principal  stopping  place  next  before  his  point  of  destina- 
tion, though  there  may  be  intermediate  stations.^  The 
reasoning  of  the  opinion  in  this  case  is  clear  and  cogent, 
and  should  be  compared  with  that  of  the  opinion  in  State 
V.  Thompson,  infra  (n.  3). 

It  was  held,  however,  in  New  Hampshire,  that  under 
such  circumstances  the  passenger  has  a  right  to  refuse  to 
give  up  his  ticket  unless  he  is  given  a  check,  and  that  his 
expulsion  because  of  such  refusal  is  unlawful.^  It  is  be- 
lieved that  this  case  would  have  been  decided  otherwise  in 
those  parts  of  the  country  where  the  giving  of  checks  to 
passengers  upon  the  surrender  of  their  tickets  is  unusual. 
The  right  to  such  check  can  hardly  depend  upon  any- 
thing but  the  usage  of  business. 

The  right  of  expulsion  for  refusing  to  show  a  ticket  is 
not  limited  by  statutory  requirements  in  reference  to  ex- 
pulsion for  non-payment  of  fare.* 

So  also  a  rule  that  a  coupon  is  not  receivable  for  fare^ 
when  detached  from  the  principal  ticket  or  book  to  which 
it  is  attached  when  sold,  is  valid.^     It  has,  however,  been 

^  Northern  R.  R.  v.  Page,  22  Barb.  (N.  Y.)  130  (1856);  Loring  v. 
Aborn,  4  Cush.  (Mass.)  608  (1849). 

'  The  rule  is  thus  stated  in  the  only  opinion  reported  in  Vedder  v. 
Fellows,  20  N.  Y.  126  (1859).  Some  of  the  Judges  concurred,  but  the 
point  was  not  decided  by  the  Court.  See  Pullman  Palace  Car  Co.  v. 
Reed,  75  111.  125  (1874). 

'  State  V.  Thompson,  20  N.  H.  250  (1850). 

*  Illinois  Central  R.  R.  v.  Whittemore,  43  111.  420  (1867). 

'  Marshall  v.  Boston  &  A.  R.  R.,  145  Mass.  164;  s.  c.  5  New  Eng. 
Rep.  172  {1887);  Louisville,  N.  &  G.  S.  R.  R.  v.  Harris,  9  Lea  (Tenn.), 


142  THE   MODERN   LAW   OF   CARRIERS. 

"held  that  if  the  two  parts  have  been  detached  by  inadvert- 
ence and  both  are  presented  at  the  same  time  to  the  con- 
ductor, they  are  valid/ 

SECTION    III. 

LIMITING  THE  TIME  OF  VALIDITY  OF  TICKET. 

A  railroad  company  has  the  right  to  limit  the  time 
during  which  a  ticket  sold  by  it  shall  be  valid.* 

Especially  may  it  do  so  in  the  case  of  a  ticket  sold  at 
a  reduced  rate,  as,  for  example,  a  commutation  ticket, 
even  though  the  number  of  trips  allowed  or  the  distance 
provided  for  by  it  (in  case  of  a  mileage  ticket)  shall  not 
have  been  traveled.^ 

t8o  (1882);  Walker  v.  Dry  Dock,  E.  B.  &  B.  R.  R.,  :>,i  How.  Pr.  (N.  Y.) 
327  (1867);  Houston  &  T.  C.  R.  R.  v.  Ford,  53  Texas,  364  (1880). 

^  Wightman  v.  Chicago  &  N.  W.  R.  Co.,  73  Wis.  169;  s.  c  40  N. 
W.  Rep.  689  (1888). 

*  Hill  57.  Syracuse  &  Binghamton  R.  R.,  d^  N.  Y.  loi  (1875);  El- 
more V.  Sands,  54  N.  Y.  512  (1874);  Wentz  v.  Erie  Railway  Co.,  3  Hun 
(N.  Y.),  241;  s.  c.  5  Thomps.  &  Cook,  556  (1874);  State  v.  Campbell, 
32  N.  J.  L.  309  (1867);  Rawitzky  v.  Louisville  &  N.  R.  R.  Co.,  40  La. 
Ann.  47;  s.  c.  3  South  Rep.  387  (1888);  Barker  v.  Coflin,  31  Barb.  (N. 
Y.)  556  (i860). 

The  reason  given  for  the  decision  in  the  latter  case  was  that  it  was 
only  in  this  way  that  a  carrier  could  protect  itself  from  overloading. 
The  court  also  say  that  the  ticket  with  its  indorsement  was  evidence  of 
the  contract  between  the  carrier  and  the  passenger,  and  that  the  carrier 
had  a  "right  to  make  any  special  contract,  not  unreasonable  or  illegal." 
A  mere  notice  on  a  ticket,  not  made  known  to  the  passenger,  certainly 
does  not  constitute  a  contract  with  him.  Quimby  v.  Vanderbilt,  17  N. 
Y.  306  (1858);  Van  Buskirk  v.  Roberts,  31  N.  Y.  661  (1864);  Rawson 
V.  Penn.  R.  R.  Co.,  48  N.  Y.  212  (1872);  Elmore  z^.  Sands,  54  N.  Y. 
512  (1874);  Pennington  v.  Phil.,  W.  &  B.  R.  R.  Co.,  62  Md.  95  (1883). 

No  doubt  the  ticket  is  admissible  in  evidence  with  other  facts  and 
circumstances  to  show  what  the  contract  really  was.  Milnor  v.  N.  Y. 
&  N.  H.  R.  R.  Co.,  53  N.  Y.  i^i  (1873)-  But  the  rule  laid  down  in  the 
cases  cited  at  the  beginning  of  this  note  find  their  true  foundation  in  the 
right  of  the  carrier  to  make  reasonable  rules  and  regulations  for  the  con- 
duct of  its  business. 

^  Sherman  v.  Chicago  &  N.  W.  R.  Co.,  40  Iowa,  45  (1874);  Powell 
V.  Pittsburg,  C.  &  St.  L.  R.  R.  Co.,  25  Ohio  St.  70  (1874);  Lillis  v.  St. 
Louis,  K.  C.  &  N.  R.  Co-,  64  Missouri,  464  (1877);  Hall  v.  Memphis  & 
C.  R.  Co.  (U.  S.  C.  Ct.  W.  D.  Tenn.),  9  Fed.  Rep.  585  (1881). 


LIMITING    TIME    OF    VALIDITY    OF   TICKET.  143 

This  time  may  be  limited  by  a  notice  printed  on  the 
ticket,  as  for  example  :  "  Good  for  this  day  only,''  or  "  only 
good  for  twenty  days  from  this  date,"  if  the  date  on  which 
the  ticket  is  sold  be  stamped  upon  the  ticket/ 

A  State  Legislature  may,  however,  enact  that  such  re- 
strictions as  to  the  time  shall  be  invalid,  and  that  a  ticket 
shall  be  valid  for  six  years  notwithstanding  the  restriction. 
Such  enactment  is  binding  upon  a  foreign  corporation 
(doing  business  within  the  State.'^ 

When  the  question  of  the  validity  of  the  limitation  as 
to  time  was  presented,  there  was  some  hesitation  on  the 
part  of  the  courts  in  sustaining  its  validity  unless  actual 
notice  of  it  were  brought  home  to  the  passenger.  In  one 
case  the  fact  is  relied  upon  that  the  passenger  knew 
that  the  through  rate  was  less  than  the  aggregate  local 
rates. ^ 

But  the  rule  is  sustainable — not  on  the  ground  of  an 
assent  on  the  part  of  the  passenger  constituting  a  con- 
tract— but  on  the  ground  that  the  regulation  is  a  reason- 
able one  which  the  company  has  a  right  to  make,  and  of 
which  it  gives  the  passenger  adequate  notice  by  printing 
it  on  his  ticket. 

1  Hill  V.  Syracuse,  Bing.  &  N.  Y.  R.  R.  Co.,  d^  N.  Y.  loi  (1875); 
Elmore  v.  Sands,  54  N.  Y  512  (1874).  In  this  casethecourt  sayof  the 
carrier:  "  It  had  the  right  to  make  a  rule  that  every  passenger,  when  he 
entered  the  train,  should  pay  his  fare  or  produce  a  ticket  showing  his 
right  to  ride  upon  that  train.  Such  a  regulation  is  neither  unreasonable 
nor  illegal.  It  is  not  an  uncommon  one,  and  it  is  not  important  that  we 
should  perceive  all  the  purposes  which  it  subserves.  It  is  sufificient  that 
it  is  apparently  useful  for  some  purpose.  If  the  ticket  be  required  to 
be  used  on  the  day  it  is  issued,  the  passenger  cannot  well  use  it  for  more 
than  one  trip,  and  the  railroad  company  will  have  some  information  of 
the  number  of  passengers  to  provide  for  on  any  day."  Boice  v.  Hud- 
son R.  R.  R.  Co.,  61  Barb.  (N.  Y.)  611  (1872);  Boston  &  Lowell  R.  R. 
Co.  z/.  Proctor,  i  Allen  (Mass.),  267  (1861);  Dietrich  v.  Penn.  R.  R. 
Co.,  71  Penn.  432  (1872);  McClure  v.  Phila.,  W.  &  B.  R.  R.  Co.,  34  Md. 
532  (1871);  Rawitzky  v.  Louisville  N.  Ry.  Co.,  3  So.  Reporter,  387; 
s.  c.  40  La.  Ann.  47  (1888). 

"^  Dryden  v.  Grand  Trunk  R.  of  Canada,  60  Me.  512  (1872). 
=»  Shedd  V.  Troy  &  Boston  R.  R.  Co.,  40  Vt.  88  (1868). 


144  THE    MODERN    LAW    OF   CARRIERS. 

This  subject  will  be  more  fully  considered  in  the 
eleventh  section  of  this  chapter. 

Proof  of  a  verbal  statement  by  the  ticket  seller,  after 
the  ticket  was  sold  that  it  would  be  good  on  any  day,  is 
not  sufficient  to  extend  its  validity,  in  the  absence  of  proof 
of  authority  on  his  part.^ 

A  rule  that  the  holder  of  an  excursion  ticket  must 
present  himself  for  identification  at  the  office  of  the  com- 
pany at  the  terminal  station,  and  that  the  ticket  shall  be 
valid  only  for  a  certain  time  after  such  identification,  is 
reasonable.^ 

If  the  passenger  begins  his  transit  on  the  last  day  on 
which  by  its  terms  the  ticket  is  valid,  he  has  a  right  to 
complete  it,  although  the  transit  is  not  complete  until  the 
following  day,  and  he  cannot  lawfully  be  expelled  from 
the  train  after  midnight  of  the  last  day  on  which  by  its 
terms  the  ticket  is  valid.^ 

If  the  last  day  upon  which  by  its  terms  the  ticket  can 
be  used  is  Sunday,  and  the  railroad  company  whose  line 
completes  the  transit  runs  no  train  on  that  day  the  pas- 


^  Boice  V.  Hudson  R.  R.  R.  Co.,  6i  Barb.  6ii  (1872).  See  post, 
Ch.  VII,  sect.  9. 

^  Rawitzky  v.  Louisville  &  N.  R.  Co.,  40  La.  Ann.  47  ;  s.  c  3 
Southern  Rep.  387  (1888). 

2  Evans  v.  St.  Louis,  Iron  Mt.  &  S.  R.  Co.,  11  Mo.  App.  463  (1882); 
Auerbach  v.  N.  Y.  Central  R.  R.  Co.,  89  N.  Y.  281 ;  s.  c  42  Am.  Rep. 
290;  21  Am.  Law  Reg.  790  (1882);  revg.  s.  c.  60  How.  Pr.  382  (1881); 
Georgia  S.  R.  R.  Co  v.  Bigelow,  68  Geo.  219  (1881). 

It  is  not  enough,  however,  that  the  passenger  present  himself  at  the 
station  on  the  last  day  on  which  his  ticket  is  valid,  if  the  last  train  for 
that  day  has  already  left.  Arnold  v.  Penn.  R.  R.  Co.,  115  Penn.  135 
(1887). 

In  Pennsylvania  Co.  v.  Hine,  41  Ohio  St.  276  (1884),  it  was  held  that 
the  passenger  was  not  entitled  to  use  a  ticket  after  the  time  limited  by 
the  terms  printed  on  its  face,  although  he  was  unable,  owing  to  the  de- 
lay of  the  carrier  to  use  it  before.  The  question  as  to  whether  the 
carrier  "washable  for  breach  of  contract  because  the  train  East  of 
Pittsburg  was  so  delayed  that  H.  could  not  enter  the  train  upon  which 
his  ticket  gave  him  a  right  to  ride,  was  not  considered."  See  post, 
Ch.  VII,  sect.  9. 


REGULATING   OR   LIMITING   TRIP.  1 45 

senger  is  entitled  to  use  his  ticket  on  tlie  Monday  follow- 
ing/ 

Indeed  it  may  fairly  be  questioned  whetlier  this  should 
not  be  the  rule  whenever  the  last  day  of  the  term  during 
which  the  ticket  can  be  used  is  a  Sunday.  It  would  seem 
that  the  courts  should  apply  to  limited  tickets  the  same 
rule  that  has  been  applied  in  so  many  other  cases ;  e.  g.^ 
the  date  on  which  commercial  paper,  without  days  of 
grace,  is  payable ;  on  which  a  tenant  must  quit  the  demised 
premises  ;  within  which  legal  papers  must  be  served,  and 
the  like. 

SECTION  IV. 

REGULATING   OR   LIMITING   THE   TRIP   UPON   WHICH   A   TICKET 

CAN   BE   USED. 

A  carrier  has  the  right  to  require  that  a  passenger 
who  breaks  his  journey  should  have  his  ticket  indorsed 
by  the  conductor,  and  can  lawfully  refuse  to  accept  the 
ticket  for  the  remainder  of  the  journey  if  this  regulation 
be  not  complied  with.^ 

Not  only  may  the  limitations  already  mentioned  be 
placed  upon  the  passenger's  manner  of  making  his  jour- 
ney, but  the  carrier  may  establish  a  rule  that  the  journey 

1  Little  Rock  &  F.  S.  R.  R.  v.  Dean,  43  Ark.  529  (1884). 

2  Beebe  v.  Ayres,  28  Barb.  (N.  Y.)  275  (1858);  Dunphy  v.  Erie  R. 
Co.,  42  N.  Y.  Superior  Ct.  Rep.  128  (1877).  In  this  case  the  rule  was 
applied  by  the  company  to  different  divisions  of  its  line,  and  this  was 
held  to  be  reasonable  and  valid. 

Denny  v.  N.  Y.  C.  cSr  H.  R.  R.,  5  Daly  (N.  Y.),  50  (1874).  In  this 
case,  as  also  in  Beebe  v.  Ayres,  the  rule  hereinafter  considered  was  ap- 
plied, that  a  partial  waiver  would  not  be  extended  beyond  its  precise 
terms.  Yorton  v.  Milwaukee,  L.  S.  &  W.  R.  Co.,  54  Wis.  234  (1882); 
s.  c.  II  N.  W.  Rep.  482.  In  this  case  the  regulation  of  the  company 
permitted  a  passenger  who  had  broken  his  journey  to  resume  it  without 
further  payment,  if  he  procured  from  the  first  conductor  a  stop-over 
check.  This  the  passenger  requested,  but  instead  received  a  trip  check. 
The  conductor  of  the  train  on  which  the  passenger  resumed  his  journey 
refused  to  receive  this,  and  ejected  him.  It  was  held  that  this  was  law- 
ful. 

10 


146  THE   MODERN   LAW   OF   CARRIERS. 

shall  be  continuous,  and  that  a  passenger  stopping  over 
during  its  progress  shall  have  no  right  to  proceed  further 
on  the  same  ticket,  but  must  pay  fa,re  for  the  remainder 
of  the  route/  The  passenger  may  select  the  train,  but 
when  once  the  transit  is  commenced  he  has  no  right  to 
change  to  another.^     In  the  case  of  a  passenger  on  a 

1  State  V.  Overton,  24  N.  J.  Law,  435  (1854);  Dietrich  v.  Penn.  R.  R., 
71  Penn.  432  (1872);  Cheney  v.  Boston  &  Me.  R.  R.,  11  Mete.  (Mass.) 
121  (1846);  Gale  V.  Del,  L.  &  W.  R.  R.,  7  Hun  (N.Y.),  670  (1876); 
Churchill  v.  Chicago  &  Alton  R.  R.,  3  Am.  Railway  Rep.  430  (1873); 
Hattenz^.  R.  R-,  39  Ohio  St.  375  (1883).  In  the  Dietrich  case  the  court 
quote  with  approval  the  case  of  State  v.  Overton.  "  The  question  is  ob- 
viously a  question  of  contract  between  the  passenger  and  the  company. 
Bv  paying  for  passage,  and  procuring  a  ticket  from  Newark  to  Morris- 
town,  the  passenger  acquired  the  right  to  be  carried  from  one  point  to 
the  other  without  interruption.  He  acquired  no  right  to  be  transported 
from  one  point  to  another  upon  the  route,  at  different  times  and  by  dif- 
ferent lines  of  conveyance,  until  the  entire  journey  was  accomplished. 
The  company  engaged  to  carry  the  passenger  over  an  entire  route  for  a 
stipulated  price.  But  it  was  not  part  of  the  contract  that  they  would 
suffer  him  to  leave  the  train,  and  resume  his  seat  in  another  train  at  any 
intervening  point  on  the  road.  If  the  passenger  chose  voluntarily  to 
leave  the  train  before  reaching  his  destination,  he  forfeited  all  rights 
under  his  contract.  The  company  did  not  engage  and  were  not  bound 
to  carry  him  in  any  other  train,  or  at  any  other  time,  over  the  residue  of 
the  route." 

2  Gale  V.  Del.,  L.  &  W.  R.  R.,  7  Hun,  670  (1876).  In  this  case  the 
court  say:  "After  the  plaintiff  had  commenced  his  journey  on  the  train 
which  he  elected  to  take,  he  had  the  legal  right  to  be  carried  to  New 
York  by  that  train,  and  the  company  was  under  legal  obligations  to  car- 
ry him  by  that  train.  This  right  was  reciprocal;  that  is,  the  defendant 
had  a  legal  right  to  insist  that  the  plaintiff's  journey  should  be  con- 
tinued until  it  was  completed,  and  that  it  should  not  be  required  to  per- 
form it  in  fragments." 

Terry  z;.  Flushing,  N.  S.  &  C  R.  R.,  13  Hun  (N.  Y.),  359  (1878); 
Stone  V.  Chicago  &  N.  W.  R.  Co.,  47  Iowa,  82  (1877).  This  was  held 
in  a  case  where  the  passenger  was,  lay  accident,  left  behind  at  a  station, 
and  sought  to  resume  his  journey  on  the  next  train,  and  tendered  to  the 
conductor  a  passage  check  that  had  been  given  him  by  the  conductor  of 
the  previous  train.  This  had,  however,  been  intended  simply  for  the  con- 
ductor's convenience  in  collecting  and  assorting  tickets.  Breen  v.  Texas 
&  Pacific  R.  R.,  50  Texas,  43  (1878).  A  train  or  passage  check  which 
had  printed  upon  it  the  words,  "  good  for  continuous  passage  only," 
came  under  consideration  in  Walker  v.  Wabash,  St.  L.  &  P.  R.  Co.,  15 
Mo.  App.  333  (1884).  It  was  held  that  the  purchaser  of  such  a  check 
from  the  original  holder  had  no  right  to  use  it  for  that  portion  of  the 
transit  which  the  original  holder  had  not  completed,  although  within  the 


REGULATING   OR   LIMITING   TRIP.  147 

steamboat,  it  is  held  that  he  may  go  ashore  at  places 
where  the  steamboat  stops,  and  resume  his  journey  on  the 
same  boat  and  trip  without  forfeiting  his  right  to  use  his 
ticket.^ 

If  the  rule  or  the  indorsement  upon  the  ticket  be, 
"Good  for  this  trip  only,"  the  ticket  may  be  used  on  a 
day  subsequent  to  that  on  which  it  is  issued,  provided 
that  the  trip  be  continuous.^ 

•  The  validity  of  a  regulation  requiring  that  the  trip 
be  continuous  was  sustained  in  a  case  where  the  passen- 
ger had  surrendered  his  ticket.^  But  it  is  believed  that 
this  is  an  immaterial  circumstance. 

If  the  conductor  refuse  to  receive  the  ticket,  and  re- 
quires the  passenger  to  pay  his  fare,  the  conductor  has  no 
right  to  retain  the  ticket.^ 

This  rule  does  not  apply  to  the  case  of  a  ticket  divided 
into  coupons,  each  coupon  covering  the  route  of  one  of 
several  connecting  roads.  In  such  case  the  traveler  has 
the  right  to  break  his  journey  at  the  terminus  of  each 
road,  unless  some  restrictions  are  printed  on  the  ticket,  or 
made  known  to  the  passenger  when  he  buys  it.^     In  such 

time  limited  by  the  ticket  which  he  purchased  and  had  surrendered  in 
exchange  for  this  train  check. 

*  Dice  V.  Willamette  Trans.  Co.,  8  Oreg.  60  (1879). 

2  Pier  V.  Finch,  24  Barb.  (N.  Y.)  514  (1857).  The  court  say:  "A 
construction  which  would  work  a  forfeiture  of  a  right,  which  the  plaint- 
iff clearly  had,  for  a  valuable  consideration  paid,  and  which  would  ena- 
ble the  corporation  to  retain  the  consideration  without  performing  the 
service,  ought  not,  it  seems  to  me,  to  be  given  to  this  language,  if  it  is 
fairly  and  reasonably  susceptible  of  any  other.  If  it  is  susceptible  of 
two  interpretations,  that  should  be  preferred  which  will  secure  and  pre- 
serve the  rights  of  both  parties,  according  to  all  canons  for  the  interpre- 
tation of  contracts." 

'  Cleveland,  C  &  C.  R.  R.  v.  Bartram,  11  Ohio  St.  457  (i860).  In 
this  case  the  court  said:  "The  plaintiff,  after  making  his  election  of  a 
train,  and  after  giving  in  his  ticket,  had  no  right  to  make  a  re-election  of 
trains  while  that  train  is  in  a  reasonable  manner  performing  the  duties 
of  the  carrier." 

*  Van  Kirk  v.  Penn.  R.  R.,  76  Penn.  66  (1874). 

■*  Brooke  v.  Grand  Trunk  R.  Co.,  15  Mich.  332  (1867);  Palmer  v. 


148  THE   MODERN    LAW   OF   CARRIERS. 

case  he  may  take  his  baggage  from  the  custody  of  the 
carrier,  and  re-deliver  it  when  he  resumes  his  journey.^ 
But  a  passenger  holding  such  a  ticket  has  no  right  to 
stop  over  at  a  way  station.* 

The  rule  just  stated  as  to  the  effect  of  the  limitation 
endorsed  on  the  ticket  or  printed  on  its  face  applies  equal- 
ly to  "lay-over"  or  "stop-over"  tickets  given  by  conduct- 
ors to  a  passenger  desiring  to  break  his  journey  at  an  in- 
termediate station,  and  resume  it  at  a  later  day.  The 
reason  stated  for  this  decision  is  the  rule  more  fully  con- 
sidered hereafter,  that  the  carrier  has  the  right  to  treat 
the  journey  as  an  entirety,  and  is  not  bound  to  issue  such 
tickets ;  and,  if  it  does,  may  annex  a  condition  as  to  the 
time  within  which  they  may  be  used.^ 

In  one  case  the  court  has  gone  so  far  as  to  hold  that  a 
ticket  for  a  trip  between  two  stations  is  not  valid  for  a  trip 
to  an  intermediate  station.^  The  ticket  was  an  excursion 
ticket,  and  sold  at  a  reduced  rate,  and  by  its  terms  was 
good  "for  a  continuous  trip  only."  But  still,  it  would 
seem  that  in  the  absence  of  an  express  agreement  to  the 
contrary,  the  purchaser  of  a  ticket  to  one  place  should 
have  the  right  to  ride  upon  that  ticket  part  of  the  way 
only.  The  carrier  may,  perhaps,  in  the  absence  of  legis- 
lation, charge  more  for  a  short  haul  than  a  long  haul,  but 


Charlotte,  C.  &  A.  R.  R.,  3  S.  Car.  (N.  S.)  580  (187 1).  In  Hamilton  z*. 
N.  Y.  Central  R.  R.,  51  N.  Y.  100  (1872),  Lott,  Ch.  Com.,  considers  the 
question  whether  the  holder  of  such  a  ticket  has  the  right  to  stop  at  a 
station  intermediate  the  termini  specified  on  each  coupon,  and  resume 
his  journey,  without  paying  fare,  to  the  next  terminus.  He  concludes 
that  the  passenger  has  no  such  right.  The  court  did  not  pass  on  the 
question. 

*  Wilson  V.  Chesapeake  &  Ohio  R.  R.,  21  Grattan  (Va.),  654  (1872). 

2  McClure  v.  Phil.,W.  &  B.  R.  R.,  34  Md.  532  (1871);  Little  Rock 
&  F.  S.  R.  R.  V.  Dean,  43  Ark.  529  (1884). 

3  Churchill  v.  Chicago  &:  Alton  R.  R.,  67  111.  390  (1873);  Wentz  v. 
Erie  R.  Co.,  5  Thomps.  &  Cook(N.  Y.),  556;  s.  c.  3  Hun,  241  (1874); 
post,  Ch.  VII,  sect.  9. 

*  Johnson  v.  Phil.,  W.  &  B.  R.  R.,  63  Md.  106  (1884). 


TICKETS   NOT   TRANSFERABLE.  1 49 

liis  right  so  to  do,  if  it  exist,  is  on  the  verge  that  sepa- 
rates the  lawful  from  the  unlawful,  and  ought  to  be  strict- 
ly construed,  and  limited  to  the  exact  terms  of  the  con- 
tract. 

By  statute  in  Maine,  a  regulation  of  the  carrier  or  con- 
tract with  him  is  invalid  which  purports  to  make  a  ticket 
invalid  when  the  passenger  has  broken  his  journey.  This 
statute  has  no  extra-territorial  operation,  although  the 
contract  for  the  transportation  is  made  in  Maine.  The 
courts  of  that  State  presume  the  law  of  other  jurisdic- 
tions to  be  the  same  as  the  common  law  of  Maine.^ 


SECTION   V. 
TICKETS  NOT  TRANSFERABLE. 

A  carrier  may  lawfully  limit  the  use  of  a  ticket  to  the 
person  buying  it,  if  the  words  "not  transferable"  or  other 
equivalent  expressions  are  printed  on  the  ticket.  In  such 
case  the  buyer  has  not  the  right  to  sell  it  after  having 
traveled  part  of  the  route,  although  his  vendee  takes  pas- 
sage on  the  same  train.^    But  in  such  case  the  carrier  has 

*  Carpenter  v.  Grand  Trunk  R.  Co.,  72  Me.  388  (1881). 

^  Post  V.  Chicago  &  N.  W.  R.  R.,  14  Neb.  no;  s.  c.  45  Am.  Rep. 
100  (1883);  Cody  z^.  Central  Pacific  R.  R.,  4  Sawyer,  114  (1876).  In 
this  case  the  court  say:  "A  contract  for  one  continuous  emigrant  pas- 
sage from  Omaha  to  San  Francisco  is  not  a  contract  to  carry  one  man 
from  Omaha  to  the  next  station,  another  to  the  next  station,  and  so  on 
through  the  entire  line,  but  an  entirely  different  contract,  and  one  upon 
different  terms  and  for  a  different  rate  of  compensation.  If  this  experi- 
ment should  succeed,  parties  could  readily  arrange  privately  for  local 
travel  at  through  rates  without  the  consent  of  the  companies.  A  party 
might  as  well  contract  to  carry  a  ton  of  freight  from  Omaha  to  San 
Francisco,  and  then  insist  that  he  could  have  a  ton  carried  to  the  first 
station,  and  transfer  a  right  to  another  party  to  carry  another  and  dif- 
ferent ton  of  freight  to  the  next  station,  and  so  on  through  the  entire 
line.  The  inconvenience  and  loss  to  the  company  would  doubtless  be 
greater  than  in  the  case  of  a  passenger,  but  the  difference  is  only  in  de- 
gree, not  in  principle." 


150  THE   MODERN   LAW    OF    CARRIERS. 

uo  right  to  take  the  ticket  from  the  vendee  and  expel  him 
from  the  train/ 

A  person  who  gets  possession  of  a  free  pass  marked 
"  not  transferable,"  and  personates  the  rightful  owner,  can- 
not recover  damages  for  injuries  caused  by  the  negligence 
of  the  company's  servants,  not  amounting  to  a  willful  tort.^ 

In  the  case  of  non-transferable  tickets,  as  in  the  other 
classes  of  cases  considered  in  this  chapter,  the  conductor 
of  a  train  may  lawfully  insist  upon  strict  compliance 
with  the  carrier's  rule,  without  regard  to  the  question  of 
the  passenger's  intent.  Thus  it  was  held  that  if  a  ticket, 
on  its  face  not  assignable,  was  made  out  in  the  name  of 
the  wrong  person,  the  conductor  could  refuse  to  receive  it 
when  presented  by  the  person  for  whom  it  was  really  pur- 
chased.^ 

And  the  carrier  may  lawfully  forfeit  a  commutation 
ticket  which,  by  its  terms,  is  not  assignable,  if  the  holder, 
either  intentionally  or  by  negligence,  has  allowed  some 
other  person  to  use  it.* 

1  Post  V.  Chicago  &  N.  W.  R.  R.,  14  Neb.  no  (1883). 

2  Way  V.  Chicago,  R.  I.  &  P.  R.  Co.,  64  Iowa,  48  (1884);  Toledo, 
Wabash  &  W.  R.  Co.  v.  Beggs,  85  111.  80  (1877).  In  the  latter  case  the 
court  say:  "Was  defendant  in  error  a  passenger  on  this  train  in  the  true 
sense  of  that  term  ?  He  was  traveling  on  a  free  pass  issued  to  one 
James  Short,  and  not  transferable,  and  passed  himself  as  the  person 
named  in  the  pass.  By  his  fraud  he  was  riding  on  the  car.  Under  such 
circumstances  the  company  could  only  be  held  liable  for  gross  negli- 
gence which  would  amount  to  willful  injury.  But,  on  the  assumption 
he  was  a  passenger  on  the  car,  riding  on  a  free  ticket  containing  the 
usual  conditions,  as  this  did,  then  the  case  is  like  that  of  Illinois  Cen- 
tral Railroad  Co.  v.  Read,  37  111.  484  (1865),  where  it  was  held  such  a 
pass  or  ticket  is  a  perfect  immunity  to  the  company  for  such  unavoid- 
able accidents  as  will  happen  to  the  best-managed  railroad  trains;  not, 
however,  shielding  them  from  liability  for  gross  negligence,  or  any  de- 
gree of  negligence  having  the  character  of  recklessness." 

'  Chicago  &  N.  W.  R.  R.  v.  Bannerman,  15  111.  App.  100  (1884).  In 
this  case  the  error  in  the  name  upon  the  ticket  was  known  to  the  person 
who  purchased  it.  But  this  seems  to  be  an  immaterial  circumstance. 
The  real  question  is  whether  the  conductor  in  any  case  is  bound  to  look 
beyond  the  face  of  the  ticket  presented  to  him.     See  post,  Ch.  VII,  sect. 

9- 

*  Friedenrich  v.  Baltimore  &  O.  R.  R.,  53  Md.  201  (1879). 


RIGHTS   OF   PASSENGERS   AND   CARRIERS.  151 

But  the  ticket  is  assignable  if  no  restriction  be  placed 
by  the  carrier  upon  its  use  before  or  at  the  time  of  the 
original  purchase/ 

SECTION    VI. 

THE  RIGHT  TO  DESIGNATE  THE  CHARACTER  OF  THE  CARS  OR 
OTHER  ACCOMMODATIONS  PROVIDED.  AND  THE  PERSONS  WHO 
SHALL  TRAVEL  UPON  OR  USE  THE  SAME.  THE  PASSENGER'S 
RIGHT  TO  A  SEAT. 

A  carrier  may  set  aside  a  car  for  the  accommodation 
of  women,  and  may  exclude  all  men,  unaccompanied  by 
women,  from  such  car.^  If,  however,  a  man  enters  such 
car  without  objection,  he  cannot  lawfully  be  removed  from 
the  same,  except  after  reasonable  notice,  and  with  due  re- 
gard to  his  safety.^  And  when  the  seats  in  the  other  cars 
are  full,  passengers  not  having  seats  may  lawfully  enter  a 
car  set  apart  especially  for  women  and  their  escorts.  In 
such  case  the  carrier  may  select  the  persons  who  shall  be 
allowed  to  enter  the  "  ladies'  car." 

If  a  carrier  provide  special  accommodation,  as,  for  ex- 
ample, a  chair  car,  he  may  charge  an  extra  fare  therefor, 
and  exclude  all  persons  who  refuse  to  pay  the  extra 
fare.* 

A  carrier  may  exclude  persons  of  color  from  a  particu- 

^  Hudson  V.  Kansas  Pacific  R.  Co.,  3  McCrary,  249  (1882). 

«  Brown  v.  Memphis  &  C  R.  Co.,  7  Fed.  Rep.  51  (1881);  Chicago 
&  N.  W.  R.  Co.  V.  WilHams,  55  111.  185  (1870);  Memphis  &  C.  R.  R. 
Co.  V.  Benson,  85  Tenn.  627  (1887). 

^  Marquette  z'.  Chicago  &  N.  W.  R.  R.,  2,Z  Iowa,  562  (1871);  Bass 
V.  Chicago  &  N.  W.  R.  R.,  36  Wis.  450  (1874).  And  so  if  a  man  enter 
a  limited  express  without  objection  he  cannot  be  removed  without  rea- 
sonable notice  and  regard  for  his  safety.  Lake  Shore  &  M.  S.  R.  Co.  v. 
Rosenzweig,  113  Penn.  519  (1886). 

*  Wright  V.  California  Central  R.  Co.,  20  Pac.  Rep.  (Cal.)  740 
(1889).  So  he  may  exclude  from  an  express  train  persons  holding  ex- 
cursion tickets  which  are  stated  on  their  face  not  to  be  valid  on  express 
trains.  Nolan  v.  New  York,  N.  H.  &  H.  R.  R.,  41  N.  Y.  Super.  Ct.  541 
(1876). 


152  THE   MODERN   LAW   OF   CARRIERS. 

lar  car  when  order  and  harmony  are  likely  to  be  promoted 
thereby/ 


*  West  Chester  &  Phila.  R.  R.  v.  Miles,  55  Penn.  209  (1867). 
But  the  Pennsylvania  Act  of  i867,Pamph.  L.  38,  which  prohibits  a  car- 
rier from  making  distinctions  between  passengers  on  account  of  race  or 
color,  prevents  the  carrier  from  excluding  persons  of  color  from  the  cars 
on  which  white  persons  holding  similar  tickets  are  allowed  to  ride.  Cen- 
tral R.  R.  of  N.  J.  V.  Green,  86  Penn.  421  (1878);  see  Britton  v.  Atlanta 
&  C.  A.  L.  R.  Co.,  88  N.  Car.  536;  s.  c,  43  Am.  Rep.  749  (1883),  in  which 
it  was  held  that  if  a  carrier  did  not  enforce  its  regulation  on  this  subject, 
which  the  court  held  to  be  lawful,  it  was  liable  to  make  good  any  injury 
to  a  colored  person  riding  in  the  car  set  aside  for  the  whites. 

In  the  Miles  case  the  court  say:  "  The  right  of  the  carrier  to  sepa- 
rate his  passengers  is  founded  upon  two  grounds — his  right  of  private 
property  in  the  means  of  conveyance,  and  the  public  interest.  The  pri- 
vate means  he  uses  belongs  wholly  to  himself,  and  imply  the  right  of 
control  for  the  protection  of  his  own  interest,  as  well  as  the  performance 
of  his  public  duty.  He  may  use  his  property,  therefore,  in  a  reasonable 
manner.  It  is  not  an  unreasonable  regulation  to  seat  passengers  so  as 
to  preserve  order  and  decorum,  and  to  prevent  contacts  and  collisions 
arising  from  natural  or  well  known  customary  repugnancies,  which  are 
likely  to  breed  disturbances  by  a  promiscuous  sitting.  This  is  a  proper 
use  of  the  right  of  private  property,  because  it  tends  to  protect  the  inter- 
ests of  the  carrier  as  well  as  the  interests  of  those  he  carries.  If  the 
ground  of  regulation  be  reasonable,  courts  of  justice  cannot  interfere 
with  his  right  of  property.  The  right  of  the  passenger  is  only  ihat  of 
being  carried  safely,  and  with  a  due  regard  to  his  personal  comfort  and 
convenience,  which  are  promoted  by  a  sound  and  well  regulated  sepa- 
ration of  passengers.  An  analogy  and  an  illustration  are  found  in  the 
case  of  an  inn-keeper,  who,  if  he  have  room,  is  bound  to  entertain  proper 
guests,  and  so  a  carrier  is  bound  to  receive  passengers.  But  a  guest  in 
an  inn  cannot  select  his  room  or  his  bed  at  pleasure;  nor  can  a  voyager 
take  possession  of  a  cabin  or  a  berth  at  will,  or  refuse  to  obey  the  rea- 
sonable orders  of  the  captain  of  a  vessel.  But,  on  the  other  hand,  who 
would  maintain  that  it  is  a  reasonable  regulation,  either  of  an  inn  or  a 
vessel,  to  cofnpel  the  passengers,  black  and  white,  to  room  and  bed  to- 
gether ?  If  a  right  of  private  property  confers  no  right  of  control,  who 
shall  decide  a  contest  between  passengers  for  seats  or  berths?  Courts 
of  ju-tice  may  interpose  to  compel  those  who  perform  a  business  con- 
cerning the  public,  by  the  use  of  private  means  to  fulfill  their  duty  to 
the  public,  but  not  a  whit  beyond." 

On  the  other  hand  it  was  held  in  Chicago  &  N.  W.  R.  Co.  v.  Wil- 
liams, 55  111.  185  (1870),  that  a  colored  woman  could  not  lawfully  be 
excluded  from  the  "  ladies'  car  "  solely  on  account  of  her  color,  though 
the  court  express  the  opinion  that  separate  seats  in  this  car  could  law- 
fully be  set  apart  for  colored  women.  The  reverse  was  held  in  Chesa- 
peake, O.  &  S.  W.  R.  R.  Co.  V.  Wells,  85  Tenn.  613  (1887);  and  see 
Day  V.  Owen,  5  Mich.  520  (1858).  If  a  carrier  may  classify  passengers, 
according  to  sex  or  color,  he  must  give  them  equal  accommodation  and 


RIGHTS   OK  PASSENGERS   AND   CARRIERS.  1 53 

But  equally  good  accommodation  must  be  provided  in 
other  parts  of  tHe  car  or  boat.^  And  in  Iowa  it  was  held 
that  it  was  unreasonable  to  require  persons  of  color  to  take 
their  meals  on  the  guard  or  in  the  pantry,  and  that  it  was 
unlawful  to  enforce  such  a  regulation  by  forcibly  removing 
a  quadroon  from  the  dining  room.'^  The  change  in  public 
sentiment  that  has  taken  place  in  the  United  States,  re- 
specting the  relations  between  the  white  and  colored  races, 
is  visible  in  the  decisions  of  the  courts,  and  illustrates  what 
Mr.  Webster  was  perhaps  the  first  to  point  out,  that  the 
reports  contain  important  material  for  history.^ 

The  carrier  may  set  apart  a  table  for  the  special  use  of 
the  of&cers  of  the  boat  and  exclude  other  persons  there- 
from.^ 

The  carrier  may  require  all  persons  wishing  to  ride  on 
freight  trains  to  procure  a  peculiar  ticket ;  ^  and  may  re- 

cannot  put  a  colored  woman,  holding  a  first  class  ticket,  into  a  smoking 
car  against  her  will.  Gray  v.  Cincinnati  S.  R.  Co.  (C.  Ct.  S.  D.  Ohio), 
II  Fed.  Rep.  687  (1882);  Houck  v.  Southern  Pac.  R.  Co.  (C  Ct.  W. 
D.  Texas),  38  Fed.  Rep.  226  (1888);  see,  also,  Green  v.  City  of  Bridge- 
ton  (U.  S.  D.  Ct.,  Ga.),  9  Cent.  L.  J.  206  (1879). 

1  The  Sue,  22  Fed.  Rep.  843  (1885);  Logwood  v.  Memphis  &  C.  R. 
Co.,  23  Fed.  Rep.  318  (1885);  Murphy  v.  Western  &  A.  R.  R.,  23  Fed. 
Rep.  637  (1885).  The  Civil  Rights  Bill,  i  Hughes  541,  547  (1875).  In 
the  Logwood  case  Hammond,  J.,  said:  "Equal  accommodations  do 
not  mean  identical  accommodations.  .  .  .  But  in  all  cases  the  car- 
rier must  furnish  substantially  the  same  accommodations  to  all,  by  pro- 
viding equal  comforts,  privileges  and  pleasures  to  every  class."  In  Hall 
V.  De  Cuir,  95  U.  S.  485  (1877),  the  Supreme  Court  held  that  a  statute 
of  Louisiana,  which  was  construed  so  as  to  forbid  a  carrier  to  exclude 
colored  women  from  the  cabin  set  apart  for  white  women,  was  uncon- 
stitutional and  void,  so  far  as  it  related  to  interstate  commerce. 

^  Coger  57.  Northwest  Union  Packet  Co.,  37  Iowa,  145  (1873). 

^  Address,  Historical  Soc,  Feb.  23,  1852;  Curtis'  Life  of  Webster, 
vol.  2,  p.  590. 

*  Ellis  V.  Narragansett  S.  S.  Co.,  iii  Mass.  146  (1872). 

^  Law  V.  Illinois  Cent.  R,  R.,  32  Iowa,  534  (1871);  Cleveland  C  & 
C.  R.  R.  V.  Bartram,  11  Ohio,  St.  457  (i860);  Burlington  &  M.  R.  R.  z'. 
Rose,  II  Neb.  177  (1881);  Falkner  v.  Ohio  &  Miss.  R.  Co.,  55  Ind.  369 
{1876);  Lake  Shore  &  M.  S.  R.  Co.  v.  Greenwood,  79  Penn.  373  (1875); 
Lane  v.  E.  T.,  Va.  &  Ga.  R.  R.,  5  Lea,  124;  s.  c.  2  Am.  &  Eng.  R.  R. 
Cas.  278  (1880);  Southern  Kansas  R.  Co.  v.   Hinsdale,   38   Kans.   507; 


154  THE    MODERN    LAW   OF   CARRIERS. 

fuse  altogether  to  carry  passengers  upon  freight  trains 
with  or  without  a  ticket,  and  either  generally  or  to  and 
from  particular  stations/  and  may  exclude  them  from  mail 
and  baggage  cars.^ 

So  the  carrier  may  and  should  refuse  to  receive  on  its 
cars  or,  if  received  by  mistake,  should  expel  therefrom  all 
persons  who  are  disorderly  or  endanger  the  safety  or  in- 
terfere with  the  reasonable  comfort  and  convenience  of  the 
other  passengers.® 

But  an  intoxicated  person  who  keeps  quiet,  and  does  not 
interfere  with  others  cannot  lawfully  be  excluded,'*  unless 

s.  c.  i6  Pac.  Rep.  937  (1888);  Thomas  v.  Chicago  &  G.  T.  R.  Co.,  40  N. 
W.  Rep.  (Mich.)  463  (1888);  Toledo,  P.  &  W.  R.  R.  v.  Patterson,  63 
111.  304  (1872);  Illinois  Central  R.  R.  v.  Nelson,  59  111.  no  (1871).  In 
this  case  the  passenger  had  a  first-class  ticket.  But  it  was  held  that  a 
regulation  was  reasonable  which  required  a  different  ticket  for  freight 
trains,  and  also  that  persons  who  took  passage  on  freight  trains  could 
only  require  that  the  train  stop  for  them  at  a  freight  station.  In  Evans 
V.  Memphis  &  C.  R.  R.,  56  Ala.  246  (1876),  it  was  held  that  in  such 
case  a  reasonable  opportunity  to  purchase  the  ticket  must  be  afforded 
or  the  exclusion  will  be  unlawful.  Dunlap  v.  Northern  Pac.  R.  R.,  35 
Minn.  203  (1886);  Indianapolis  &  St.  L.  R.  R.  v.  Kennedy,  77  Ind.  507 
{1881).  If  the  carrier  permit  a  passenger  to  ride  on  a  freight  train  at 
regular  rates  without  any  qualification,  it  must  exercise  the  same  care 
as  on  passenger  trains.  New  York,  Chicago  &  St.  L.  R.  Co.  v.  Doane, 
115  Ind.  435;  s.  c.  15  West  Rep.  465  (1888). 

^  Holmes  v.  Wakefield,  12  Allen  (Mass.),  580  (1866);  Arnold  z>.  111. 
Cent.  R.  R.,  83  111.  273  (1876);  Chicago  &  Alton  R.  R.  z;.  Randolph,  53 
111.  510  (1870);  South  &  N.  Ala.  R.  R.  v.  Huffman,  76  Ala.  492  (1884). 

^  Kentucky  Central  R.  R.  v.  Thomas,  79  Ky.  160  ;  s.  c  42  Am.  Pep. 
208  (1880);  O'Donnell  v.  Alleghany  V.  R.  R.,  59  Penn.  239  (1868); 
Houston  &  T.  C.  R.  R.  v.  Clemmons,  55  Texas  88  (1881). 

3  Putnam  v.  Broadway  &  Seventh  Ave.  R.  R.,  55  N.  Y.  108  (1873); 
Atchison,  T.  &  S.  F.  R.  R.  v.  Weber,  S3  Kansas  543  (1885);  Louisville 
&  N.  R.  R.  zj.  Logan  (Ky.),  3  Lawy.  Rep.  Ann.  80  (1889);  Sullivan  v. 
Old  Colony  R.  R.,  148  Mass.  119;  s.  c.  i  Lawy.  Rep.  Ann.  513  (1888); 
Higgins  V.  Watervliet  T.  &  R.  R.,  46  N.  Y.  23  (1871).  The  last  four 
cases  involved  the  ejection  of  intoxicated  persons.  The  right  to  eject  a 
person  using  grossly  profane  or  obscene  language  was  sustained  in  Chica- 
go, B.  &  Q.  R.  R.  V.  Griffin,  68  111.  499  (1873).  And  see  St.  Louis,  A.  &. 
T.  R.  Co.  z>.  Mackie,  71  Texas,  491  (1888).  So  the  carrier  may  remove  a 
person  who  apparently  has  the  smallpox,  though  it  afterward  turns  out 
that  he  had  not.  Paddock  z'.  Atchison,  T.  &  S.  F.  R.  Co.,  37  Fed.  Rep. 
^41;  s.  c.  4  Lawy.  Rep.  Ann.  231  (1889). 

*  Milliman  v.  N.  Y.  Central  &  H.  R.  R.  R.,  66  N.  Y.  642  (1876). 


RIGHTS   OF   PASSENGERS   AND   CARRIERS.  1 55 

tkere  is  reason  to  believe  that  lie  will  become  offensive  or 
annoying  to  the  other  passengers.^  Some  care  for  his 
safety  must  be  taken,  and  it  would  be  negligent  to  eject 
him  in  a  place  where  he  would  be  in  danger  of  being  run 
over  by  another  train." 

The  carrier  may  prohibit  all  persons  from  riding  on 
the  platform  of  its  cars.  This  right  in  some  States,  as  in 
New  York,^  is  declared  by  statute,  but  there  seems  to  be 
no  reason  to  doubt  that  it  exists  independently  of  statu- 
tory regulation.*  But  this  right  implies  an  obligation  on 
the  part  of  the  carrier  to  provide  suitable  accommodation 
elsewhere.  If  a  car  is  crowded  it  is  not  negligent  for  a 
passenger  to  ride  on  the  platform,  and  he  is  not  bound  to 
request  other  passengers  to  remove  their  parcels  from  the 
seats  or  to  make  room  so  as  to  enable  him  to  sit  down. 
It  is  the  duty  of  the  carrier  to  see  that  he  has  a  seat.^ 

Standing  on  the  platform  has  been  held  not  to  be  of 
itself  negligence,  if  notice  of  a  regulation  forbidding  it 
has  not  been  posted  in  the  cars,  especially  when  it  ap- 
peared that  the  plaintiff  found  the  car  he  entered  crowded 
and  had  not  time  before  the  accident  to  find  a  seat  in  an- 
other.^ 

^  Vinton  e/.  Middlesex  R.  R.,  11  Allen  (Mass.),  304  (1865);  Murphy 
V.  Union  R.  Co.,  118  Mass.  228  (1875). 

"  Haley  v.  Chicago  &  N.  W.  R.  R.  21  Iowa,  15  (1866);  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Weber,  2,Z  Kansas,  543  (1885);  Louisville  &  N.  R.  R.  v. 
Logan  (Ky.),  3  Lawy.  Rep.  Ann.  80  (1889). 

^  Railroad  Act;  Laws  of  1850,  Chap.  140,  section  46. 

*  Moss  V.  Johnson,  22  111.  633  (1859);  Virginia  M.  R.  R.  v.  Roach' 
83  Va.  375  (1887).  It  is  the  duty  of  a  passenger  to  go  inside  if  told  to 
do  so  by  the  brakeman,  even  though  there  are  no  seats  inside.  Graville 
V.  Manhattan  R.  R.,  105  N.  Y.  525  (1887);  Alabama  G.  S.  R.  R.  Co.  v. 
Hawk,  72  Ala.  112;  s.  c.  18  Am.  &  Eng.  R.  R.  Cas.   194  (1882). 

5  Willis  V.  Long  Island  R.  R.,  34  N.  Y.  670  (1866). 

«  Colegrove  v.  N.  Y.  &  N.  H.  R.  R.,  6  Duer  (N.  Y.),  382  (1857);  affd. 
20  N.  Y.  492  (1859);  Transfer  Co.  v.  Kelly,  36  Ohio  St.  86  (1880).  It 
would  probal)ly  be  held  otherwise  in  a  case  where  sufficient  accommo- 
dation was  provided  elsewhere  and  the  passenger  knew  the  place  he  se- 
lected to  be  more  dangerous  than  inside  the  passenger  car.     Houston  & 


156  THE   MODERN   LAW   OF   CARRIERS. 

It  has  been  held  that  while  the  carrier  has  the  right  to 
exclude  from  its  cars  persons  who  propose  to  enter  them 
for  immoral  purposes,  as,  for  example,  gambling,  yet  if  a 
ticket  has  been  sold  to  such  a  person  his  fare  must  be  re- 
turned before  he  can  be  lawfully  ejected.^ 

This  decision  is  opposed  to  the  current  of  authority 
unless  it  be  confined  to  the  case  of  a  person  excluded  sim- 
ply because  of  his  profession,  and  not  for  any  actual  mis- 
conduct.^ 

T.  C.  R.  R.  V.  Clemmons,  55  Texas,  88  (1881).     But  see   Graville  v. 
Manhattan  R.  R.,  p.  155,  note  4,  ante. 

^  Thurston  v.  Union  Pacific  R.  R.  4  Dill.  321  (1877.)  In  this 
case  the  court  charged  the  jury:  "  The  railway  company  is  bound,  as  a 
common  carrier,  when  not  overcrowded,  to  take  all  proper  persons  who 
may  apply  for  transportation  over  its  line,  on  their  complying  with  all 
reasonable  rules  of  the  company.  But  it  is  not  bound  to  carry  all  per- 
sons at  all  times,  or  it  might  be  utterly  unable  to  protect  itself  from  ruin. 
It  would  not  be  obliged  to  carry  one  whose  ostensible  business  might  be 
to  injure  the  line;  one  fleeing  from  justice;  one  going  upon  the  train  to 
assault  a  passenger,  commit  larceny  or  robbery,  or  for  interfering  with 
the  proper  regulations  of  the  company,  or  for  gambling  in  any  form, 
or  committing  any  crime;  nor  is  it  bound  to  carry  persons  infected  with 
contagious  diseases,  to  the  danger  of  other  passengers.  The  person 
must  be  upon  lawful  and  legitimate  business.  Hence  defendant  is  not 
bound  to  carry  persons  who  travel  for  the  purpose  of  gambling.  As 
gambling  is  a  crime  under  the  State  laws,  it  is  not  even  necessary  for  the 
company  to  have  a  rule  against  it.  It  is  not  bound  to  furnish  facilities 
for  carrying  out  an  unlawful  purpose.  Necessary  force  may  be  used  to 
prevent  gamblers  from  entering  trains,  and  if  found  on  them  engaged 
in  gambling,  and  refusing  to  desist,  they  may  be  forcibly  expelled.  . 
.  .  After  ticket  is  purchased  and  paid  for,  the  railroad  company  can 
only  avoid  compliance  with  its  part  of  the  contract  by  the  existence  of 
some  legal  cause  or  condition  which  will  excuse  it.  The  company 
should,  in  the  first  case,  refuse  to  sell  tickets  to  persons  whom  it  desires 
and  has  the  right  to  exclude  from  the  cars,  and  should  exclude  them  if 
they  attempt  to  enter  the  car  without  tickets.  If  the  ticket  has  been  in- 
advertently sold  to  such  person  and  the  company  desires  to  rescind  the 
contract  for  transportation,  it  should  tender  the  return  of  the  money 
paid  for  the  ticket.  If  it  does  not  do  this,  plaintiff  may,  under  any  cir- 
cumstances, recover  the  amount  of  his  actual  damage,  viz.:  what  he  paid 
for  the  ticket,  and,  perhaps,  necessary  expenses  of  his  detention." 

2  In  Wright  v.  California  Central  R.  Co.,  20  Pac.  Rep.  (Cal.)  740 
(1889),  it  was  held  that  a  person  who  was  lawfully  excluded  from  one 
car,  and  invited  to  sit  in  another,  but  who  refused  and  left  the  train, 
could  not  recover  damages  because  his  ticket  was  not  returned  to  him 
nor  his  fare  refunded.     It  was  held  in  Lemont  v.  Washington  &  G.  R. 


RIGHTS   OF    PASSENGERS    AND    CARRIERS.  1 57 

It  is  lawful  to  eject  from  a  car  or  steamboat  a  person 
wHo  attempted  to  ply  thereon  a  calling,  the  object  of 
which  was  to  injure  the  business  of  the  carrier.^  The 
carrier  may  prohibit  the  sale  of  refreshments  on  the  boat 
or  train.^ 

The  conductor  or  other  person  in  charge  of  a  train 
may  dispense  with  the  general  regulations  of  the  car- 
rier, as  to  the  place  where  passengers  should  ride.  A 
passenger  is  justified  in  relying  on  the  conductor's  direc- 
tions.'^ 

R.,  I  Mackey  (D.  C),  180  (1881),  that  a  carrier  could  lawfully  remove 
from  its  car  a  person  who  it  had  reason  to  believe  would  be  guilty  of 
misconduct  or  indecency.  On  the  other  hand  it  was  held  in  Brown  v. 
Memphis  &  C.  R.  Co.,  7  Fed.  Rep.  51  (1881),  that  a  woman  of  bad 
character,  if  she  conducted  herself  properly,  could  not  lawfully  be  ex- 
cluded from  the  ladies'  car. 

■*  Jencks  v.  Coleman,  2  Sumner,  221  (1835).  In  this  case  the  person 
excluded  from  the  carrier's  boat  sought  passage  for  the  purpose  of  solic- 
iting passengers  to  take  a  line  of  coaches  in  opposition  to  that  with 
which  the  boat  regularly  connected.  Judge  Story  charged  that  if  the 
contract  with  the  connecting  line  was  reasonable  and  bona  fide  and  not 
entered  into  for  the  purpose  of  an  oppressive  monopoly,  and  the  exclu- 
sion of  the  plaintiff  was  a  reasonable  regulation  in  order  to  carry  this 
contract  into  effect,  it  was  lawful.  No  point  was  made  in  his  case  that 
the  fare  should  have  been  returned.  See  p.  156,  note  i,  ante.  Old  Col. 
R.  R.  V.  Tripp,  147  Mass.  35;  s.  c  17  N.  East.  Rep.  89  (1888);  Com- 
monwealth V.  Carey,  147  Mass.  40,  note;  s.  c  17  N.  E.  Rep.  97  (1888); 
Barney  v.  Oyster  Bay  &  H.  Steamboat  Co.,  67  N.  Y.  301  (1876);  The 
D.  R.  Martin,  11  Blatch.  233  (1873);  see,  also,  Commonwealth  z'.  Power, 
7  Mete.  (Mass.)  596  (1844);  Markham  v.  Brown,  8  N.  H.  523  (1837). 
But  the  mere  wearing  the  uniform  of  an  opposition  company  is  not  good 
cause  for  removal  of  the  person  wearing  it.  South  Fla.  R.  Co.,  v. 
Rhoads,  3  Lawy.  Rep.  Ann.  133;  5  So.  Rep.  633  (1889). 

^  Smallman  v.  Whilter,  87  111.  545;  s.  c.  29  Am.  Rep.  76  (1877). 

3  Edgerton  v.  New  York  &  H.  R.  R.,  39  N.  Y.  227  (1868);  Carroll 
V.  N.  Y.  cSf  N.  H.  R.  R.,  I  Duer  (N.  Y.),  571  (1853);  Phila.  &  Reading 
R.  R.  V.  Derby,  14  How.  (U.  S.)  468  (1852);  Lawrenceburg  &  Upper 
Miss.  R.  R.  V.  Montgomery,  7  Ind.  474  (1856);  Penn.  R.  R.  v.  Hender- 
son, 51  Penn.  315  (1865);  Penn.  R.  R.  v.  McCloskey,  23  Penn.  526 
(1854).  In  the  McCloskey  case,  the  plaintiff  was  a  stockman,  and  was 
required  by  the  regulations  of  the  company  to  ride  on  the  car  contain- 
ing his  stock.  By  the  conductor's  directions  he  took  a  seat  in  another 
car,  and  while  there  was  injured  by  an  accident  caused  by  the  negli- 
gence of  the  company's  servants.  Had  he  remained  in  the  stock  car  he 
would  not  have  been  injured.     The  court  held  that  it  was  lawful  for 


158  THE   MODERN    LAW   OF    CARRIERS. 

It  is  to  be  observed  that  a  passenger's  non-compliance 
with  the  carrier's  regulations  is  no  bar  to  an  action  for  in- 
juries not  caused  by  such  disobedience  but  by  negligence 
of  the  carrier,  unconnected  therewith.^ 

This  is  analogous  to  the  well  settled  rule  in  collision 
cases  that  a  violation  of  a  regulation  which  has  not  con- 
tributed to  produce  the  collision,  is  not  a  bar  to  a  recovery 
at  law,  and  does  not  in  admiralty  occasion  a  division  of  the 
damage.^ 

The  decisions  are  not  uniform  as  to  whether  the  rea- 
sonableness of  this  class  of  rules  is  a  question  of  law  or 
fact.^     On  principle,  if  the  facts  are  undisputed,  the  ques- 

him  to  obey  the  conductor's  directions,  and  that  his  doing  so  in  viola- 
tion of  the  general  rules  of  the  company  constituted  no  defence.  As  to 
waiver  of  the  carrier's  rules,  see  Ch.  VII,  sect.  g.  post. 

The  conductor's  authority  seems  to  be  restrained  to  the  trains.  The 
company  is  not  bound  by  his  direction  to  the  passenger  what  to  do  after 
leaving  them.  The  reason  the  company  is  bound  by  the  conductor's 
directions  while  the  passenger  is  on  the  cars  is  that  the  passenger 
is  bound  to  obey  them.  Cincinnati,  H.  &  I.  R.  R.  v.  Carper,  112  Ind.  26 
(1887). 

1  Lafayette  &  Indianapolis  R.  R.  v.  Sims,  27  Ind.  59  (1866);  Lacka- 
wanna &  Bloomsburg  R.  R.  v.  Chenewith,  52  Penn.  382  (1866);  Britton 
V.  Atlanta  &  C  A.  L.  R.  R.,  88  N.  Car.  536  (1883). 

In  the  Chenewith  case  the  plaintiff,  after  being  informed  that  it  would 
be  against  the  rules  of  the  company  to  attach  his  freight  car  to  a  passen- 
ger train,  persuaded  the  company's  agents  to  attach  it.  He  was  injured 
by  an  accident  caused  by  the  negligence  of  the  company  in  not  provid- 
ing a  proper  fence.  The  court  held  that  as  his  violation  of  the  rules  of 
the  company  did  not  contribute  to  the  accident,  he  was  entitled  to  re- 
cover. 

In  Carroll  v.  N.  Y.  &  N.  H.  R.  R.,  i  Duer  (N.  Y.),  571  (1853),  the 
plaintiff  was  injured  while  sitting  in  the  baggage  car.  This  was  in  vio- 
lation of  a  rule  of  the  company,  but  no  objection  to  his  taking  his  seat 
there  was  made  by  the  conductor,  and  it  was  shown  that  passengers  did 
frequently  sit  there.  The  court  held  that  the  plaintiff  could  recover,  as 
his  being  there  did  not  tend,  directly  or  remotely,  to  produce  the  act 
which  caused  the  injury. 

'^  The  Farragut,  10  Wall.  334  (1870);  Hoffman  v.  Union  Ferry  Co., 
47  N.Y.  176  (1872). 

'  That  it  is  a  mixed  question  of  law  and  fact.  Day  v.  Owen,  5  Mich. 
520  (1858);  Bass  V.  Chicago  &  N.  W.  R.  Co.,  36  Wis.  450  (1874);  Com- 
monwealth V.  Power,  7  Mete  (Mass.)  596  (1844);  Jencks  v.  Coleman,  2 
Sumner,  221  (1835);  Brown  v.  Memphis  &  C  R.  Co.,  4  Fed.  Rep.  37 


STATIONS    AT   WHICH    TRAINS    SHALL    STOP.  1 59 

tion  of  tlie  reasonableness  of  a  rnle  is  for  the  court.  If 
there  is  a  conflict  of  evidence  as  to  the  facts,  the  question 
should  be  submitted  to  the  jury,  under  appropriate  instruc- 
tions. 

A  passenger  who  has  paid  his  fare  has  a  right  to  a 
seat.  But  he  cannot  insist  upon  being  transported  free  of 
charge  unless  a  seat  be  given  him.  If  a  seat  is  not  pro- 
vided his  remedy  is  to  leave  the  train  and  sue  the  carrier 
for  the  damage  caused  by  its  refusal  or  neglect  to  pro- 
vide a  seat  for  him.^ 


SECTION.  VII. 

RULES    AND    REGULATIONS    AS    TO    THE    STATIONS    AT    WHICH 
TRAINS    SHALL    STOP. 

The  carrier  has  also  the  right  so  to  arrange  his  trains 
that  some  of  them  shall  stop  only  at  the  principal  sta- 
tions.^ 

It  is  the  duty  of  the  passenger  to  ascertain  if  the  train 
he  is  about  to  take  will  stop  at  the  station  for  which  he 
has  bought  a  ticket.  If  he  fails  to  enquire,  he  has  no 
right  to  insist  that  the  train  shall  stop  there.^ 

(1880).  That  it  is  a  pure  question  of  fact:  State  v.  Overton,  24  N.  J. 
Law,  435  (1854);  Morris  &  Essex  R.  R.  v.  Ayers,  29  N.  J.  Law,  393 
(1862).  That  it  is  a  pure  question  of  law:  Chicago  &  N.  W.  R.  Co.  v. 
WilHams,  55  111.  185,  188  (1870).     See  ante,  p.  132,  n.  2. 

*  Memphis  &  Charleston  R.  R.  v.  Benson,  85  Tenn.  627  (1887); 
Hardenbergh  v.  St.  Paul,  M.  &  M.  R.  Co.,  (Minn.)  38  N.  W.  Rep.  625 
(1888).  In  Werle  v.  Long  Island  R.  R.,  98  N.  Y.  650  (1885),  the  court 
say:  "  The  sale  of  tickets  by  the  defendant  at  that  station  for  passage 
on  that  train  bound  it  to  furnish  a  safe  and  secure  place  for  passengers 
to  ride,  and  comfortable  accommodations  for  their  convenience." 

^  Dietrich  v.  Penn.  R.  R.,  71  Penn.  432  (1872);  Trotlinger  v.  East 
Tenn.,  V.  &  G.  R.  R.,  11  Lea  (Tenn.),  533  (1883);  Logan  v.  Hannibal 
&  St.  Jo.  R.  R.,  77  Mo.  663  (1883). 

'  Chicago  &  Alton  R.  R.  v.  Randolph,  53  111.  510  (1870);  Ohio  & 
Miss.  R.  Co.  V.  Applewhite,  52  Ind.  540  (1876);  Pittsburg  &  St.  L.  R. 
Co.  V.  Nuzum,  50  Ind.  141  (1875);  Ruling  v.  Philadelphia,  W.  &  B.  R. 
R.,  66   Md.   120;    5  Central  Rep.  570  (1886);  Chicago,  St.  L.  &  P.  R. 


l6o  THE   MODERN   LAW   OF   CARRIERS. 

The  original  direction  given  to  the  passenger  as  to  the 
train  he  should  take  must  be  subject  to  subsequent  modi- 
fication to  conform  to  the  character  of  the  route.^  And  it 
is  held  that  he  may  take  a  train  which  does  not  stop  at 
the  station  to  which  his  ticket  entitles  him  to  ride,  break 
his  journey  at  an  intermediate  station,  and  then  proceed 
in  a  train  which  does  stop  at  his  point  of  destination.^ 
This  decision  may  at  first  seem  inconsistent  with  some  of 
those  cited  in  Section  IV  of  this  chapter.  But  the  right 
thus  maintained  is  generally  conceded  by  railroads  in  this 
country.  It  enables  the  traveler  to  make  the  larger  part 
of  his  journey  more  rapidly  and  conveniently  on  an  ex- 
press train,  and  keeps  local  trains  for  local  travel,  and 
does  not  appear  to  have  caused  any  of  those  supposed  in- 
conveniences to  the  carrier,  the  apprehension  of  which  has 

Co.  V.  Bills,  104  Ind.  13;  s.  c.  3  N.  East.  Reporter,  611  (1885);  Fink  v. 
Albany  &  S.  R.  R.,  4  Lansing  (N.  Y.),  147  (1871);  Atchison,  T.  &  S.  F. 
R.  R.  V.  Gants,  38  Kans.  608  (1888);  Dietrich  v.  Penn.  R.  R.,  71  Penn. 
432  (1872);  Beauchamp  v.  International  &  G.  N.  R.  Co.,  56  Texas,  239 
(1882);  9  Am.  &  Eng.  R.  R.  Ca.  307. 

The  words,  printed  on  a  ticket,  "good  on  passenger  trains  only,"  do 
not  import  an  agreement  that  a  particular  train  shall  stop  at  every  sta- 
tion. Ohio  &  M.  R.  Co.  z'.  Swarthout,  67  Ind.  567  (1879).  Nor  do  the 
words,  on  a  ticket,  "  for  this  day  and  train  only,"  amount  to  a  represen- 
tation that  a  particular  train  will  stop  at  the  station  named  in  the  ticket. 
Duling  V.  Philadelphia,  W.  &  B.  R.  R.,  66  Md.  120;  5  Central  Rep.  570 
(1886). 

In  both  these  cases  it  was  held  that  the  sale  of  a  ticket  for  a  partic- 
ular station,  just  before  the  departure  of  a  train,  did  not  constitute  a  . 
representation  that  the  train  would  stop  at  that  station.    Under  circum- 
stances somewhat  special,  the  contrary  was  held  in  Mississippi,  Mobile 
&  O.  R.  R.  V.  McArthur,  43  Miss.  180  (1870). 

Nor  does  the  punching  and  taking  up  of  a  ticket  for  a  particular 
station,  after  the  conductor  has  informed  the  passenger  that  the  train 
does  not  stop  there,  constitute  an  agreement  that  it  shall.  Trotlinger  v. 
E.  Tenn.,  V.  &  G.  R.  R.,  1 1  Lea  (Tenn.),  533  (1883). 

If  a  passenger  gets  on  a  train  without  inquiry  as  to  the  stations  at 
which  it  stops,  and  it  makes  no  stop  until  a  station  beyond  that  for 
which  he  has  a  ticket,  he  must  pay  the  additional  fare  to  the  first  usual 
stopping-place.  Atchison,  T.  &  S.  F.  R.  Co.,  v.  Gants,  38  Kans.  608 
(1888). 

1  Barker  v.  N.  Y.  Central  R.  R.,  24  N.  Y.  599  (1862). 

^  Richmond,  F.  &  P.  R.  R.  v.  Ashby,  79  Va.  130;  s.  c.  52  Am.  Rep. 
620  (1884). 


BAGGAGE   AND   FREIGHT.  l6l 

led  some  courts  to  hold  that  the  traveler,  irrespective  of 
an  agreement  to  the  contrary,  had  no  right  to  break  his 
journey.  The  practice  on  some  of  the  great  routes,  of 
running  limited  trains,  for  which  seats  must  be  specially 
engaged  at  an  extra  charge,  is  not  inconsistent  with  the 
rule  thus  stated.  The  service  on  such  trains  is  excep- 
tional, and  a  matter  of  special  agreement. 

If  a  statute  of  the  State  where  the  station  is  situated 
require  the  train  to  stop  there,  a  corporation  incorporated 
under  the  laws  of  another  State  is  bound  to  observe  this 
requirement,  and  is  liable  in  damages  to  a  passenger 
whom  it  refuses  to  leave  at  that  station.^ 

Stopping  a  train  at  a  regular  station  is  an  invitation 
to  the  public  to  take  passage  thereon.^ 

SECTION   VIII. 

REGULATIONS  AS  TO  BAGGAGE  AND  FREIGHT. 

The  carrier  may  make  reasonable  rules  and  regula- 
tions as  to  the  place  where  the  baggage  of  passengers 
shall  be  deposited.  If  the  passenger  is  informed  of  such 
rules,  and  does  not  observe  them,  he  cannot  recover  for 
the  loss  of  his  baggage.^     And  in  general  the  carrier  is 

^  Penn.  R.  R.  z^.  Wentz,  37  Ohio  St.  333  (1881).  This  was  so  held 
although  the  ticket  contained  a  stipulation  that  the  purchaser  "agrees 
to  use  it  only  on  such  trains  as  regularly  stop  at  both  stations  named." 
It  would  seem  that  the  court  might  have  held  that  this  constituted  a 
waiver  by  the  passenger  of  the  right  given  by  the  statute. 

*  Werle  v.  Long  Is.  R.  R.,  98  N.  Y.  650  (1885). 

'  Gleason  v.  Goodrich  Trans.  Co.,  32  Wis.  85  (1873).  In  this  case 
the  plaintiff  was  a  passenger  on  defendant's  steamboat,  and  knew  that  a 
room  was  provided  in  which  baggage  could  be  placed  in  charge  of  a 
porter  and  checked.  He  had  a  valise,  which  he  placed  in  an  unlocked 
stateroom,  from  which  it  was  stolen.  The  carrier  was  held  not  to  be  li- 
able. The  plaintiff  asked  the  clerk  for  a  key  to  the  stateroom,  but  none 
was  provided.  He  told  the  clerk  he  wanted  to  put  his  valise  in  a  safe 
place.  He  asked  the  cabin  boys  if  it  would  be  safe  in  the  stateroom, 
and  they  replied  in  the  affirmative.  But  all  these  inquiries  were  held 
not  to  absolve  him  from  the  consequence  of  his  failure  to  get  the  valise 
11 


1 62  THE   MODERN   LAW   OF   CARRIERS. 

not  liable  for  baggage  not  placed  in  his  custody,  nor  en- 
trusted to  some  person  duly  authorized  to  receive  it, 
tliougH  there  may  be  an  exception  to  this  rule  so  far  as 
personal  baggage,  required  for  the  passenger's  use  during 
the  journey,  is  concerned.^ 

A  regulation  that  passengers'  baggage  shall  be  deliv- 
ered only  at  one  of  several  stations  at  which  a  train  regu- 
larly stops  is  unreasonable.  The  right  of  a  passenger  to 
stop  at  a  particular  station  involves  the  right  to  have  his 
baggage  delivered  to  him  there.^ 

The  regulations  considered  in  this  chapter  were  chiefly 
made  in  reference  to  the  carriage  of  passengers.  But  the 
carrier  may  lawfully  make  similar  regulations  in  refer- 
ence to  freight.  For  example,  it  may  provide  a  safer  and 
more  expensive  conveyance  for  valuable  live  stock,  and 
contract  that  it  shall  not  be  liable  for  damage  to  live  stock 
carried  at  a  cheaper  rate  in  ordinary  cars.^     The  rules 

checked  at  the  parcel  room,  and  it  was  also  held  that  there  was  no  de- 
livery of  the  valise  to  the  carrier's  custody.  The  court,  however,  inti- 
mates that  a  rule  requiring  a  passenger  to  surrender  his  hand-baggage 
would  be  unreasonable. 

^  McKee  v.  Owen,  15  Mich.  115  (1866);  Forbes  v.  Davis,  18  Texas, 
268  (1857);  Cohen  v.  Frost,  2  Duer  (N.  Y.),  335  (1853);  Steamboat 
Crystal  Palace  v.  Vanderpool,  16  B.  Monr.  (Ky.)  302  (1855).  See,  how- 
ever, the  Steamboat  H.  M.  Wright,  Newberry  Adm.  494  (1854),  in  which 
case  the  court  holds  that  personal  or  hand-baggage  need  not  be  deliv- 
ered to  the  carrier's  actual  custody  in  order  to  make  him  liable  for  its 
loss.  In  McKee  v.  Owen,  Christiancy,  J.,  says  that  the  liability  of  the 
carriers  for  the  loss  of  baggage  is  that  of  an  inn-keeper.  But  in  Steam- 
boat Crystal  Palace  v.  Vanderpool  the  court  says  it  knows  of  no  case 
where  this  has  been  held.  In  Louisiana  the  code  assimilates  the  liabil- 
ity of  common  carriers  to  that  of  inn-keepers.  Dunn  v.  Branner,  13 
La.  Ann.  452  (1858).  In  Cohen  v.  Frost  the  plaintiff  was  a  steerage 
passenger  in  defendant's  ship.  During  the  voyage  his  trunk  was  stolen. 
It  had  been  in  his  exclusive  possession  and  custody.  Held,  that  he 
trusted  to  his  own  care  and  vigilance  to  protect  him  against  its  loss, 
and  that  the  defendants  were  not  liable.  See,  also.  III  Cen.  R.  R,  v. 
Tronstine,  64  Miss.  834  (1887);  I.  &  G.  N.  R.  Co.  v  Folliard,  66  Tex- 
as, 603  (1886);  Louisville,  N.  &  G.  S.  R.  R.  v.  Katzenberger,  16  Lea 
(Tenn.),  380  (1886). 

'  Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Lyon,  123  Penn.  140  (1889). 
'  Robinson  v.  Great  Western  R.  Co.,  i  H.  &  R.  97  (1865). 


WAIVER   BY  CARRIER.  1 63 

Stated  in  Chapter  IV,  as  to  the  validity  of  contracts  ex- 
empting from  liability  for  negligence,  would  undoubtedly 
be  applied  in  sucb  a  case. 


SECTION    IX. 

WAIVER  BY  THE  CARRIER.— THE  PASSENGER'S  REMEDY  FOR  THE 
VIOLATION  OF  A  SPECIAL  AGREEMENT  MODIFYING  OR  WAIV- 
ING THE  CARRIER'S  RULES. 

The  carrier  may  waive  strict  compliance  with  its 
rules.  But  a  partial  waiver,  as,  for  example,  allowing  a 
passenger  to  use  a  ticket  for  a  portion  of  the  journey  be- 
yond the  time  limited  by  it,  will  not  be  construed  as  a 
complete  waiver.  The  carrier  may  afterwards  enforce  the 
rule,  and  refuse  to  allow  the  holder  of  the  ticket  to  travel 
the  remainder  of  the  route  unless  he  pays  his  fare.*  It  is 
held  that  the  company's  gate-keeper  and  train-despatcher 
has  no  authority  to  waive  compliance  with  the  conditions 
printed  on  a  ticket,  by  assigning  the  passenger  to  a  train 
on  which  he  is  not  entitled  to  travel.^  The  rule  already 
stated,  as  to  the  effect  of  a  partial  waiver,  applies  to  a 
ticket  good  for  a  given  number  of  miles,  but  limited  as  to 
time.^ 

^  Stone  V.  Chicago  &  N.  W.  R.  Co.,  47  Iowa,  82  (1877);  Dietrich  v. 
Penn.  R.  R.,  71  Penn.  432  (1872);  Hill  v.  Syracuse  &  N.  Y.  R.  R.,  (>i 
N.  Y.  loi  (1875). 

'  Johnson  v.  Phil.,  W.  &  B.  R.  R.,  63  Md.  106  (1884). 

'  Sherman  v.  Chicago  &  N.  W.  R.  Co.,  40  Iowa,  45  (1874).  So  it 
was  held  in  Wentz  v.  Erie  R.  Co.,  5  Thomps.  &  Cook  (N.  Y.),  556;  s.  C 
3  Hun,  241  (1874),  that  such  a  limitation  was  not  waived  by  the  fact  of 
checking  baggage  for  a  passenger  who  tendered  such  a  ticket  to  the 
baggage  master,  although  the  latter  punched  it  as  if  it  had  been  a  valid 
ticket.  In  Cloud  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  14  Mo.  App.  136 
(1883),  this  same  rule  was  applied  to  a  waiver  by  the  conductor  of  one 
of  the  carriers  forming  part  of  a  line  of  connecting  carriers.  It  was 
held  that  this  waiver  did  not  bind  the  carriers  forming  the  rest  of  the 
line,  for  the  whole  of  which  the  ticket  in  question  was  sold.  Oppen- 
heimer  v.  Denver  &  R.  G.  R.  Co.,  9  Col.  320  (1886).  In  this  case  a 
mileage  ticket,  by  its  terms,  was  not  good  on  a  part  of  the  route.     Evi- 


164         THE  MODERN  LAW  OF  CARRIERS. 

Where  a  railroad  company  is  exempt  from  liability  to 
a  passenger  by  reason  of  his  traveling  on  a  free  pass,  it 
does  not  waive  this  exemption  by  accepting  payment  for 
drawing-room  car  ticket/ 

The  decisions  are  not  harmonious  as  to  the  effect  of 
the  omission  of  the  carrier's  agent  to  enforce  at  the  outset 
some  rule  which  it  has  prescribed  for  the  purpose  of  giv- 
ing validity  to  the  ticket.  Some  railroad  companies  re- 
quire persons  purchasing  excursion  tickets  to  sign  the 
ticket  when  purchased,  and  procure  it  to  be  stamped  by 
the  company's  agent  before  beginning  the  return  trip,  and 
make  a  rule  that  an  unstamped  ticket  is  invalid.  In  some 
States  it  is  held  that  if  the  failure  to  stamp  the  ticket  is 
due  to  the  mistake  or  fault  of  the  carrier's  agent,  and  the 
passenger  has  done  what  he  reasonably  can  to  secure  a 
proper  ticket,  the  ticket  is  valid,  and  the  carrier  has  no 
right  to  refuse  to  receive  it,  although  it  is  not  stamped 
in  conformity  with  his  rules.^  On  the  other  hand  it  was 
held,  by  the  United  States  Supreme  Court,'  that  even  if 
the  holder  of  the  ticket  applied  at  the  proper  office,  and 
endeavored  to  procure  his  ticket  to  be  stamped,  but  was 
unable  to  do  so  owing  to  the  absence  of  the  proper  agent, 
the  return  ticket  would  nevertheless  be  invalid.  But  this 
was  put  on  the  ground  that  the  agent  whose  default  was 
the  cause  of  the  passenger's  failure  to  procure  his  ticket 
to  be  stamped  was  not  the  agent  of  the  defendant,  but  of 

dence  that  similar  tickets  had  been  used  upon  that  part  of   the  route 
without  objection  was  held  to  be  inadmissible. 

1  Ulrick  V.  N.  Y.  Central  &  H.  R.  R.  R.,  108  N.  Y.  80  (1888);  revg. 
13  Daly,  129  (1885). 

""  Head  v.  Georgia  Pac.  R.  Co.,  79  Geo.  358;  7  S.  E.  Rep.  217  (1887); 
Gregory  v.  Burlington  &  M.  R.  R.  R.,  10  Neb.  250  {1880);  Kent  v.  Bal- 
timore &  O.  R.  R.,  45  Ohio  St.  284  (1887).     See  ante,  p.  144,  n.  2. 

»  Mosher  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  127  U.  S.  390  (1888);  affg. 
23  Fed.  Rep.  326  (1885).  The  same  case  held  that  a  clause  in  a  ticket, 
signed  by  the  plaintiff,  providing  that  no  agent  should  have  power  to 
modify  or  waive  the  conditions  of  the  ticket,  was  valid,  and  that  it  de- 
prived the  conductor  of  power  to  waive  the  condition  in  question. 


WAIVER    BY    CARRIER.  1 65 

a  connecting  line,  for  whose  default,  under  the  agreement, 
the  defendant  was  not  liable.  In  Massachusetts  it  is  held 
that  a  conductor  who  delivers  to  a  passenger  who  pays  his 
fare  a  wrong  ticket,  does  not  bind  the  carrier  so  far  as  to 
make  the  ticket  valid,  and  entitled  the  passenger  to  com- 
plete the  trip  for  which  he  has  paid.^ 

No  doubt  it  would  be  inconvenient  to  compel  a  subse- 
quent conductor  to  determine  whether  the  passenger's 
statement  that  he  has  paid  his  fare  is  true  or  not.  On  the 
other  hand  the  general  rule  that  a  principal  is  bound  by 
the  acts  and  declarations  of  an  agent  in  and  about  the 
business  which  he  is  authorized  to  transact,  no  matter 
what  his  secret  instructions  may  be,  should  not  be  depart- 
ed from  except  for  cogent  reasons. 

The  question  is  really :  What  is  the  passenger's  rem- 
edy for  a  violation  by  the  carrier's  agents  of  a  special 
agreement  made  by  him  with  other  agents  of  the  carrier, 
which  modifies  or  waives  in  his  case  the  carrier's  general 
rules? 

There  is  an  irreconcilable  conflict  between  the  cases 
upon  the  question  whether  the  conductor  of  a  train  is 
bound  to  accept  the  statement  of  the  passenger  respecting 
the  contract  alleged  by  him  to  have  been  made  for  his 
transportation.  The  tendency  of  the  earlier  cases  was  to 
hold  that  if  the  conductor  did  not  do  this,  but  acted  in  ac- 
cordance with  the  rules  of  the  carrier  in  reference  to  the 
facts,  as  they  appeared  to  him,  irrespective  of  the  passen- 
ger's statement,  and  the  jury  should  find  that  the  passen- 
ger's statement  was,  in  point  of  fact,  true,  and  that  he  had 
made  a  contract  with  some  officer  of  the  carrier,  the  efiect 
of  which  was  to  vary  its  rules,  the  carrier  would  be  liable 
for  any  damages   sustained  by  the  passenger  in  conse- 


^  Bradshaw  v.  South  Boston  R.  R.,  135  Mass.  407;  s.  c  46  Am. 
Rep.  481  (1883).  In  this  case,  however,  it  was  held  that  the  action 
should  not  be  in  tort,  but  for  the  breach  of  contract. 


1 66  THE  MODERN   LAW  OF  CARRIERS. 

quence  of  his  eviction  from  tliat  train.  All  tlie  cases 
agree  that  the  carrier  is  liable  in  damages  for  the  failure 
to  perform  a  contract  made  by  its  authorized  agent  with 
the  passenger/     But  the  question  as  to  which  they  have 

^  The  company  is  liable  for  the  breach  of  a  contract  made  by  a 
ticket  agent,  that  a  particular  train  shall  stop  at  a  particular  station  for 
which  a  ticket  is  purchased.  Marshall  v.  St.  Louis,  K.  C  &  N.  R.  Co., 
78  Mo.  610;  s.  c.  18  Am.  &  Eng.  R.  R.  Cas.  248  (1883).  See  ante^ 
p.  144,  n.  3. 

In  Lake  Shore  &  M.  S.  R.  Co.  v.  Pierce,  47  Mich.  277  (1882),  the 
court  held  that  the  ticket  agent  was  authorized  to  make  such  a  contract 
and  that  the  carrier  was  liable  in  damages  for  its  breach,  but  that  the 
passenger  had  no  right  to  require  that  the  train  should  stop  at  the  par- 
ticular station  as  represented  by  the  ticket  agent.  In  other  words,  his 
remedy  is  in  damages,  and  he  cannot  insist  upon  the  specific  perform- 
ance of  the  agreement.  In  view  of  the  practice  of  forwarding  passen- 
gers to  the  nearest  largest  station  by  express  trains,  and  then  on  local 
trains  to  their  destination,  this  appears  to  be  a  reasonable  solution  of 
the  question  stated  in  the  text.  In  Alabama,  however,  it  was  held  in  a 
similar  case  that  the  passenger  could  recover  damages  for  eviction  from 
the  train.     Ala.  G.  S.  R.  R.  v.  Heddleston,  82  Ala.  218  (1886). 

It  is  held  that  an  agreement  is  valid  between  the  passenger  and  con- 
ductor of  a  train,  that  it  should  stop  at  a  particular  station,  at  which  it 
was  not  usual  to  stop.  McGinnis  v.  Mo.  Pac  R.  Co.,  21  Mo.  App.  399; 
s.  c.  4  West  Rep.  797  (1886);  Georgia  R.  R.  &  B.  Co.  v.  McCurdy,  45 
Geo.  288;  s.  c.  12  Am.  Rep.  577  (1872). 

In  Hull  V.  East  Line  Red  River  R.  R.,  66  Texas,  619  (1886),  a  con- 
ductor had  been  in  the  habit  of  stopping  at  a  place,  not  a  station,  and  it 
was  held  that  he  must  be  considered  as  authorized  to  promise  to  let 
a  passenger  off  there.  In  another  case,  however,  it  was  held  that  the 
conductor  had  no  authority  to  make  an  agreement  that  the  train  should 
stop  at  a  station  at  which,  according  to  the  published  time-table,  the 
train  was  not  to  stop.  Ohio  &  M.  R.  Co.  v.  Hatton,  60  Ind.  12  (1877). 
So  it  was  held,  in  Pittsburg,  C.  «&  St.  L.  R.  Co.  v-  Nuzum,  60  Ind.  533 
(1878),  that  the  ticket  agent  had  no  authority  to  bind  the  company  by 
his  statements  as  to  the  station  at  which  a  train  would  stop- 
In  St.  Louis,  A.  &  T.  R.  Co.  v.  Mackie,  71  Texas,  491;  i  Lawyers' 
Rep.  Ann.  667;  9  S.  W.  Rep.  451  (1888),  it  was  held  that  a  passenger 
who  had  paid  for  first-class  tickets,  and,  without  negligence  on  his  part, 
received  second-class  tickets,  was  entitled  to  ride  first-class,  and  that 
the  offer  of  the  conductor,  to  allow  him  to  ride  first-class  on  paying  the 
difference  between  first  and  second-class  tickets,  was  no  defense.  In 
this  case  the  passenger  was  not  evicted,  but  made  his  journey  in  the 
second-class  car. 

In  two  cases  in  Maryland  reliance  was  placed  on  the  fact  that  the 
statement  on  the  face  of  the  ticket  expressed  the  rights  of  the  passen- 
ger, and  that  he  was  bound  to  know  what  these  were,  and  had  no  right 
to  rely  on  the  statement  of  a  ticket  agent  (Pennington  v.  Phil.,  W.  & 
B.  R.  R.,  62  Md.  95  [1883]);  or  of  a  gate  agent  (Johnson  v.  Phil.,  W.  & 


WAIVER    BY   CARRIER.  1 67 

differed  is  as  to  tlie  passenger's  remedy.  Can  lie  stand 
upon  his  rights  as  he  understands  them,  resist  an  eviction 
from  the  train  by  all  the  force  at  his  command,  and,  if 
the  carrier  is  able — as  it  generally  is — to  bring  superior 
force  to  bear,  claim  damages  for  the  injuries  caused  to 
him  by  the  forcible  eviction  ?  In  the  reported  opinions  on 
this  subject,  this  distinction  between  the  right  and  the 
remedy  has  not  always  been  observed.  When  the  court 
has  arrived  at  the  conclusion  that  the  contract  of  a  com- 
pany, in  reference  to  the  passenger's  transportation,  had 
been  violated,  it  has  in  some  cases  concluded  that  the  pas- 
senger's remedy  was  to  resist  any  eviction  in  violation  of 
this  contract.^     But  this  does  not  necessarily  follow,  and 

B.  R.  R.,  63  Md.  106  [1884]),  in  contradiction  of  the  language  of  the 
ticket. 

*  The  passenger  may  stand  upon  his  rights  based  upon  the  assur- 
ances of  the  conductor  (Tarbell  v.  No.  Central  R.  R.,  24  Hun  [N.  Y], 
51  [1881]),  or  of  the  ticket  agent,  and  if  he  is  evicted  in  violation  of  the 
agreement  so  alleged  to  have  been  made  by  him,  he  can  maintain  an  ac- 
tion of  tort  against  the  company.  Jeffersonville  R.  R.  v.  Rogers,  38 
Ind.  116  (1871);  Murdock  v.  Boston  &  Albany  R.  R.,  137  Mass.  293 
(1884);  Head  v.  Georgia  Pac.  R.  Co.,  79  Geo.  358;  7  S.  E.  Rep.  217 
(1887);  Ala.  G.  S.  R.  R.  v.  Heddleston.  82  Ala.  218  (1886);  Kansas 
Pac.  R.  Co.  V.  Kessler,  18  Kans.  523  (1877).  In  Burnham  v.  Grand 
T.  R.  Co.,  63  Me.  298;  s.  c.  18  Am.  Rep.  220  (1873),  the  court  held 
that  the  conductor  should,  before  evicting  the  plaintiff,  have  offered  to 
return  the  excessive  fare  already  paid,  or  to  deduct  it  from  the  addi- 
tional fare  which  he  demanded.  The  case  was  one  of  a  stop-over  ticket, 
and  the  question  arose  as  to  the  alleged  agreement  with  the  ticket 
agent,  that  the  passenger  might  break  his  journey  at  an  intermediate 
station. 

In  the  following  case  it  was  held  that  it  was  the  conductor's  duty  to 
accept  the  statement  of  a  passenger  as  to  his  contract  with  the  ticket 
agent,  irrespective  of  any  statement  upon  the  face  of  the  ticket;  and 
that  if  the  conductor  should,  in  violation  of  this  contract,  attempt  for- 
cibly to  expel  the  passenger,  this  would  be  an  assault  for  which  the  car- 
rier would  be  liable. 

Hufford  V.  Grand  Rapids  &  I.  R.  R.,  64  Mich.  631;  s.  c.  7  West. 
Rep.  859  (1887).  In  this  case  the  court  say:  "The  ticket  given  by  the 
agent  to  the  plaintiff  was  the  evidence  agreed  upon  by  the  parties  by 
which  the  defendant  should  thereafter  recognize  the  rights  of  plaintiff 
in  his  contract,  and  neither  the  company  nor  any  of  its  agents  could 
thereafter  be  permitted  to  say  the  ticket  was  not  such  evidence,  and 
conclusive  upon  the  subject.     Passengers  are  not  interested  in  the  in- 


l68        THE  MODERN  LAW  OF  CARRIERS. 

it  is  believed  tliat  the  better  opinion,  and  one  wbicli  on 
the  whole  will  tend  to  subserve  the  objects  for  which  car- 
riers are  incorporated,  is  that  the  passenger  should  sub- 
mit peaceably  to  the  decision  of  the  conductor,  and  not 
compel  a  stopping  of  the  train,  much  less  a  forcible  evic- 
tion, but  seek  his  remedy — if  his  rights  have  been  vio- 
lated— by  suit  against  the  carrier  for  its  breach  of  the 
contract/ 

This  seems  to  follow  from  the  fundamental  proposition 
that  the  carrier  discharges  not  a  private,  but  a  public 
function,  and  in  the  discharge  of  this  function  it  is  neces- 
sary, for  the  safety  of  passengers,  that  the  train  should 
be  run  with  punctuality,  stopping  only  at  the  appointed 
places.  The  more  complicated  the  railway  system  be- 
comes, the  more  essential  is  it  that  the  rules  made  by  the 
carrier  for  the  management  of  its  train-service  should  be 
strictly  observed. 

The  cases  are  especially  conflicting  where  the  attempt 
has  been  made  to  eject  a  passenger  for  failure  to  produce 
any  ticket  whatever,  or  one  in  accordance  with  the  car- 
rier's general  rules.  If  the  passenger  originally  had  a 
ticket,  which  he  has  surrendered  to  a  conductor,  and  no 
check  or  voucher  has  been  returned  to  the  passenger,  it 
has  been  held  that  it  was  unlawful  to  eject  him  afterwards 
for  failure  to  exhibit  his  ticket  or  pay  his  fare.^ 

ternal  affairs  of  the  companies  whose  coaches  they  ride  in,  nor  are  they 
required  to  know  the  rules  and  regulations  made  by  the  directors  of  a 
company  for  the  control  of  the  action  of  its  agents  and  management  of 
its  affairs." 

If  the  agent  of  the  carrier  acts  in  good  faith,  the  passenger  should 
not  offer  exasperating  resistance;  and,  if  he  does,  can  recover  only  the 
actual  damage  he  sustains.  Toledo,  Wabash  &  W.  R.  Co.  v.  Wright,  68 
Ind.  586  (1879). 

1  Hall  V.  Memphis  &  Charleston  R.  Co.  (U.  S.  C.  Ct..  W.  D.  Tenn.), 
15  Fed.  Rep.  57  (1882);  Chicago,  B.  &  Q.  R.  R.  v.  Griffin,  68  111.  499 
(1873);  Pt"^-  R-  R-  ^'-  Connell,  112  111.  295  (1884);  Southern  Kan.  R. 
Co.  V.  Rice,  38  Kan.  398;  s.  c.  16  Pacific  Reporter,  817  (1888). 

^  Hamilton  ?'.  Third  Ave.  R.  R.,  53  N.  Y.  25  (1873);  Townsend  v. 
N.  Y.  Central  &  H.  R.  R.  R.,  6  Thomps.  &  Cook  (N.  Y.),  495 ;    s.  c.  4 


WAIVER   BY   CARRIER.  1 69 

The  same  rule  has  been  laid  down  in  cases  where  the 
holder  of  an  excursion  ticket  received  from  the  first  con- 
ductor a  check,  instead  of  his  return  ticket;  or  where, 
from  any  error  of  the  first  conductor,  the  passenger  failed 
to  receive  a  return  ticket  in  due  form.^  Other  cases  main- 
tain the  reverse.  These  conflicting  decisions  are  stated  in 
the  notes. 

Hun,  217  (1875).  I"  this  case  the  Supreme  Court  said:  "To  require  a 
passenger  to  show  a  ticket  may  be  reasonable,  but  a  company  cannot  re- 
quire a  passenger  to  comply  with  a  regulation,  compliance  with  which 
they  have  themselves  prevented.  Nor  can  it  be  said  that  the  act  of  the 
conductor,  in  taking  up  the  ticket,  was  wrongful  toward  the  passenger. 
The  company  might  take  up  their  tickets  whenever  they  chose,  but  they 
could  not,  by  so  doing,  acquire  the  right  to  refuse  to  transport  the  pas- 
senger." Pittsburg,  Cin.  &  St.  L.  R.  Co.  v.  Hennigh,  39  Ind.  509 
(1872);  Palmer  v.  Charlotte,  C.  &  A.  R.  R.,  3  S.  Car.  (N.  S  )  580  (1872); 
City  &  Suburban  R.  of  Savannah  v.  Brauss,  70  Ga.  368  (1883). 

The  authority  of  the  statement  just  quoted  from  the  Townsend  case 
is  not  unquestioned.  Indeed,  the  law  in  New  York  is  by  no  means  free 
from  doubt.  On  the  first  appeal  in  the  Townsend  case,  56  N.  Y.  295 
(1874),  the  opinion  of  Grover,  J.,  which  is  the  only  one  reported,  main- 
tains that  the  expulsion  under  the  circumstances  stated  was  lawful,  but 
that  the  passenger  had  a  remedy  for  the  unlawful  act  of  the  first  con- 
ductor in  not  giving  him  a  proper  check.  It  does  not  appear  that  this 
was  concurred  in  by  a  majority  of  the  court.  And  the  General  Term, 
in  the  same  case,  did  not  follow  the  rule  thus  stated,  but  held,  as  has 
been  shown,  that  the  expulsion  was  unlawful.  And  it  was  so  held  in 
the  Hamilton  case,  in  which  the  opinion  was  delivered  by  Grover,  J., 
and  in  which  the  court  was  unanimous.  The  Townsend  case  in  the 
Court  of  Appeals  is  cited  without  disapproval  in  Lynch  v.  Metropolitan 
El.  R.  Co.,  90  N.  Y.  77  (1882).  In  English  z;.  Delaware  &  Hudson 
Canal  Co.,  66  N.  Y.  454  (1876),  the  court  do  not  overrule  it,  but  dis- 
tinguish it  from  the  case  of  a  passenger  who  has  already  paid  his  fare  to 
the  conductor  who  ejects  him.  In  the  latter  case  it  was  held  that  the 
passenger's  resistance  was  lawful,  and  that  he  could  recover  for  the  in- 
jury caused  him  by  the  force  used  to  overcome  his  resistance.  The 
rule  stated  in  Judge  Grover's  opinion  in  the  Townsend  case  is  in  accord 
with  Sheltin  v.  Lake  Shore  &  M.  S.  R.  Co.,  29  Ohio  St.  214  (1876). 

1  Lake  Erie  &  Western  R.  Co.  v.  Fix,  88  Ind.  381  (1882);  Philadel- 
phia, W.  &  B.  R.  R.  V.  Rice,  64  Md.  63  (1885);  Baltimore  &  O.  R.  R. 
V.  Bambrey,  16  Atl.  Reporter  (Penn.),  67  (1888).  It  has,  however,  been 
held  that  in  such  cases  the  passenger's  only  remedy  is  an  action  against 
the  company  for  the  breach  of  the  contract  made  by  its  agent.  Frede- 
rick V.  Marquette,  H.  &  O.  R.  R.,  37  Mich.  342  (1877).  See  St.  Louis, 
A.  &  T.  R.  Co.  V.  Mackie,  71  Texas,  491;  i  Lawyers'  Rep.  Ann.  667; 
9  S.  W.  Rep.  451  (1888).  The  Rice  case  should  be  compared  with  the 
other  Maryland  cases,  ante,  p.  166,  n.  i. 


170  THE   MODERN   LAW   OF   CARRIERS. 

The  distinction  is  taken  in  some  of  the  decisions  thus 
cited,  between  the  case  of  a  passenger  who  has  failed  to 
receive  from  one  conductor  the  evidence  of  his  right  to 
passage  in  a  connecting  train,  and  that  of  a  passenger 
who  is  evicted  by  the  same  conductor  to  whom  he  has 
paid  his  fare  or  surrendered  his  ticket.^  There  certainly 
is  an  important  difference  between  the  two  cases.  But  it 
can  hardly  be  said  to  be  sufi&cient,  clearly  to  outweigh  the 
argument  drawn  from  the  inconvenience  and  danger  to 
the  public,  involved  in  the  stoppage  of  a  train  at  an  unus- 
ual place,  and  for  an  indefinite  time. 


SECTION   X. 

POWER  OF  CARRIER  TO  ENFORCE  REASONABLE  RULES. 

The  power  to  enforce  reasonable  rules  and  regulations 
made  by  the  carrier  must,  of  necessity,  to  a  large  ex- 
tent be  vested  in  the  carrier's  servants.  Their  rights  in 
this  particular  find  many  illustrations  in  reported  cases. 
The  carrier  may  authorize  his  servants  to  remove  from 
the  cars,  or  other  property  belonging  to  him,  a  person 
who  has,  after  reasonable  notice  of  the  established  regu- 
lations and  opportunity  for  compliance,  neglected  or  re- 
fused to  comply  with  them,  or  to  pay  his  fare.^ 

1  English  V.  Delaware  &  H.  Canal  Co.,  (id  N.  Y.  454  (1876),  and 
other  cases  cited,  ante,  p.  168,  n.  2. 

"^  Carpenter  v.  Washington  &  G.  R.  R.,  121  U.  S.  474  (1887);  Havens 
V.  Hartford  &  New  Haven  R.  R.,  28  Conn.  69  (1859);  Landrigan  v^ 
The  State,  31  Ark.  50  (1876);  Barker  v.  Coflin,  31  Barb.  (N.  Y.)  556 
(i860);  Hibbard  v,  N.  Y.  &  Erie  R.  R.,  15  N.  Y.  455  (1857);  Cin.  S.  & 
C.  R.  R.  V.  Skillman,  39  Ohio  St.  444  (1883);  Louisville  &  N.  R.  R.  v. 
Maybin,  5  So.  Rep.  (Miss.)  401  (1889). 

The  Landrigan  case  was  an  appeal  from  a  conviction  for  assault  and 
battery.  Appellant  was  the  watchman  at  the  depot  of  a  railroad  com- 
pany, which  had  adopted  a  regulation  forbidding  the  entry  of  inn-keep- 
ers, or  their  agents,  upon  the  platform  of  the  depot  for  the  purpose  of 
soliciting  patronage.  The  party  assaulted,  knowing  the  regulation,  en- 
tered on  the  platform  for  the  prohibited  purpose.     Appellant  warned 


CARRIER  TO  ENFORCE  REASONABLE   RULES.         171 

The  authorities  are  not  uniform  as  to  whether,  when 
the  removal  is  made  from  a  train,  it  may  be  made  any- 
where, or  only  at  a  regular  station.  In  Minnesota,  Mary- 
land and  Missouri  it  is  held  that  he  may  be  ejected  any- 
where.^ The  same  rule  has  been  laid  down  in  Michigan, 
Iowa,  Indiana  and  Kansas,  subject  to  the  just  qualifica- 
tion that  reasonable  care  and  prudence  be  exercised  in  the 
selection  of  the  place  for  ejection.^  In  other  States,  how- 
ever, it  is  held  that  the  ejection  must  be  at  a  usual  place 
for  stopping  the  trains.^ 

him  that  he  was  violating  the  regulation,  and  notified  him  to  desist;  he 
refused,  and  thereupon  appellant  ejected  him  from  the  platform.  Held, 
that  the  regulation  was  a  reasonable  one,  and  that  the  appellant  com- 
mitted no  offense  in  enforcing  it.  Atchison,  T.  &  S.  F.  R.  R.  v.  Gants^ 
38  Kans.  608;  s.  c.  17  Pacific  R.  54  (1888). 

Memphis  &  C.  R.  R.  v.  Chastine,  54  Miss.  503  (1877).  In  this  case 
the  passenger  had  a  ticket,  for  which  he  had  paid  in  counterfeit  notes. 
He  was  ignorant  of  the  character  of  the  notes.  Held,  that  the  apparent 
payment  was  really  no  payment  at  all. 

*  Wyman  v.  Northern  Pacific  R.  R.,  34  Minn.  210;  s.  c.  25  N.  W. 
Reporter,  349  (1885).  In  this  case,  however,  the  person  ejected  was  a 
trespasser.  McClure  v.  Phil.,  W.  &  B.  R.  R.,  34  Md.  532  (1871).  The 
court  say  (p.  538):  "We  cannot  concur  in  the  doctrine  contended  for 
by  the  counsel  for  the  appellant,  that  a  passenger  having  no  ticket,  and 
refusing  to  pay  his  fare,  can  only  be  put  off  at  some  station  on  the  road. 
The  establishment  of  such  a  principle  would  result  in  compelling  rail- 
road companies  to  carry  a  passenger  to  the  station  next  to  the  one  at 
which  he  entered  the  train,  which  might,  and  doubtless  would  often 
turn  out  to  be,  the  very  point  to  which  he  desired  to  be  taken,  and  if 
the  passenger  were  unknown  to  the  conductor,  the  company  would  be 
without  remedy."  To  the  same  effect  is  Lillis  v.  St.  L.,  K.  C.  &  N.  R. 
Co.,  64  Mo.  464  (1877),  in  which  the  court  say  that  a  person  who  goes 
on  board  a  train  with  a  ticket  which,  by  the  terms  on  its  face,  has  ex- 
pired, and  refuses  to  pay  his  fare,  is  a  trespasser,  although  he  has  been 
advised  that  the  ticket  was  valid.  Everett  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  69  Iowa,  15  (1886). 

2  Great  Western  R.  Co.  v.  Miller,  19  Mich.  305  (1869);  Brown  v 
Chicago,  R.  I.  &  P.  R.  Co.,  51  Iowa,  235  (1879);  Toledo,  W.  cSr  W.  R 
Co.  V.  Wright,  68  Ind.  586  (1879).  It  was  so  held  in  this  latter  case 
notwithstanding  the  existence  of  a  statute  similar  to  that  of  Illinois 
quoted  in  note  3.  The  court  held  this  to  be  permissive  only,  and  not 
mandatory.     Atchison,  T.  &  S.  F.  R.  Co.  v.  Gants,  38  Kans.  608  (1888) 

3  Chicago  &  Alton  R.  R.  v.  Flagg,  43  111.  364  (1867);  Chicago,  Bur 
lington  &  Quincy  R.  R.  v.  Parks,  18  lb.  460  (1857);  Toledo,  P.  ^  W 
R.  R.  V.  Patterson,  63  111.  304  (1872).     In  Illinois  Central  R.  R.  v.  Sut 


172  THE    MODERN    LAW   OF   CARRIERS. 

No  unnecessary  violence  should  be  used.^  A  passen- 
ger who  has  paid  his  own  fare  may  be  ejected  for  refusing 

ton,  42  lb.  438  (1867),  the  court  recognize  the  proposition  stated  in  the 
text.  Jn  that  case,  however,  the  passenger  had  endeavored  to  procure 
a  ticket  before  entering  the  car — the  regulation  of  the  company  re- 
quiring it — but  had  been  unable  to  do  so  because  the  ticket  office  was 
closed.  The  court  held  that,  as  the  company  was  itself  at  fault,  it 
<:ould  not  impose  such  a  hardship  upon  the  passenger  as  putting  him 
off  its  train  in  any  place  except  a  regular  station.  In  some  States  this 
matter  is  regulated  by  statute.  The  general  railroad  act  of  Illinois 
(111.  R.  S.  [ed.  1883],  ch.  114,  sect.  94)  provides  that  the  conductor  may, 
if  the  passenger  refuse  to  pay  the  required  fare,  eject  him  "at  any  usual 
stopping-place."  This  means  the  place  where  passenger  trains  usually 
stop  for  passengers  to  get  on  and  off.  Illinois  Central  R.  R.  v.  Latimer, 
21  N.  East  Rep.  (111.)  7  (1889).  See,  also,  111.  R.  S.,  ch.  114,  sect.  80, 
p.  II 59.  This  was  held  to  exclude  the  right  of  ejection  at  any  other 
place,  even  though  the  passenger  said  that  he  would  get  off  if  the  con- 
ductor would  stop  the  train.  Chicago  &  N.  W.  R.  Co.  v.  Peacock,  48 
111.  253  (1868).  Under  the  New  Hampshire  statute  (N.  H.  Gen.  Laws, 
ch.  163,  sect.  22)  a  "passenger  station"  was  held  to  mean  a  place  at 
which  passenger  tickets  are  usually  sold.  Baldwin  v.  Grand  Trunk  R. 
Co.,  64  N.  H.  596;  7  New  Eng.  Rep.  iii;  15  Atl.  Rep.  411  (1888).  In 
New  York  the  general  railroad  act,  ch.  140,  of  1850,  sect.  35  (3  Rev.  Stat. 
Banks  Bros.,  8  ed.  1760),  requires  that  the  ejection  should  be  at  a  sta- 
tion or  near  a  dwelling  house.  A  similar  provision  is  contained  in  the 
Rapid  Transit  Act,  Laws  1875,  ^h.  606,  sect.  29  (3  R.  S.  Banks  Bros., 
8  ed.  1831);  and  in  the  statutes  of  Vermont,  Stephen  v.  Smith,  29  Vt. 
160  (1857);  and  California,  Wright  v.  California  Central  R.  Co.,  20  Pac. 
Rep.  740  (1889).  Passengers  on  railroad  trains  have  a  right  to  seats, 
and  if  one  refuses  to  pay  his  fare  because  no  seat  is  furnished  him,  he 
cannot  be  ejected  except  at  a  regular  station.  Hardenburgh  against 
St.  Paul,  M.  &  M.  R.  Co.,  38  N.  W.  Rep.  (Minn.)  625  (1888).  In  this 
case  it  is  said  that  a  trespasser  can  be  ejected  anywhere.  This  was  so 
held  in  Illinois  Central  R.  R.  v.  Whittemore,  43  111.  420  (1867);  South 
Fla.  R.  Co.  V.  Rhoads,  3  Lawy.  Rep.  (Fla.)  733;  5  So.  Rep.  633  (1889). 
In  Florida  there  is  a  statute  on  the  subject,  but,  like  that  of  Illinois,  it 
provides  only  for  the  case  of  a  refusal  to  pay  fare.  A  passenger  who 
tenders  sufficient  fare  to  the  station  to  which  he  wishes  to  go,  which  is 
wrongfully  refused  by  the  conductor,  may  lawfully  insist  that  he  be  put 
off  at  once,  and  not  be  carried  to  the  next  station.  Hall  v.  South  Caro- 
lina R.  Co.,  28  S.  Car.  261  (1887). 

^  Gallena  v.  Hot  Springs  R.  R.,  13  Fed.  Rep.  116;  s.  c  4  McCrary, 
371  (1882);  New  Jersey  Steamboat  Co.  v.  Brockett,  121  U.  S  637  (1887); 
Law  V.  Illinois  Cent.  R.  R.,  32  Iowa,  534  (1871);  Coleman  v.  New  York 
&  N.  H.  R.  R.,  106  Mass.  160  (1870);  Great  Western  R.  Co.  v.  Miller, 
19  Mich.  305  (1869);  Hanson  v.  European  &  N.  A.  R.  Co.,  62  Me.  84 
(1873);  State  V.  Ross,  26  N.  J.  Law,  224  (1857);  Jardine  v.  Cornell,  50 
Ibid,  485  (1888).  Whether  it  has  been  or  not,  is  a  question  for  the  jury. 
Arnold  v.  Penn.  R.  R.,  115  Penn.  135;  s.  c.  6  Central  Rep.  630  (1887). 


CARRIER  TO   ENFORCE  REASONABLE  RULES.         1 73 

to  pay  tlie  fare  of  a  child  who  is  accompanying  him,  and 
under  his  charge.^  It  has  been  held  that  if  the  ejection 
be  made  in  good  faith,  but  not  at  a  regular  station,  the 
aggrieved  party  can  only  recover  the  damages  caused  by 
the  unsuitableness  of  the  place.^  The  carrier's  servants 
would  not,  in  any  case,  be  justified  in  ejecting  a  person 
from  the  cars  while  the  train  was  in  motion.^  Some  rea- 
sonable regard  must  be  had  for  the  safety  of  even  a  tres- 
passer or  intoxicated  person,  and  especially  for  the  safety 
of  a  sick  person  who  is  removed  because  his  continuance 
in  the  car,  in  the  condition  in  which  he  is,  is  inconsistent 
with  the  health  or  comfort  of  the  other  passengers/  In 
Connecticut  it  was  held  that  the  holder  of  a  commutation 
ticket,  who  could  not  find  it  when  its  production  was  re- 

But  in  Stone  v.  Chicago  &  N.  W.  R.  Co.,  47  Iowa,  82  (1877),  it  was 
held  that  a  person  ejected  had  no  right  of  action  because  the  company- 
had  not  employed  for  his  ejection  gentlemanly,  polite,  or  even  sober, 
servants.  Chicago,  St.  L.  &  P.  R.  R.  v-  Bills,  104  Ind.  13;  s.  c.  3  North 
Eastern  Reporter,  6n  (1885). 

^  Philadelphia,  W.  &  B.  R.  R.  v.  Hoeflich,  62  Md.  300  (1884);  Gib- 
son and  Wife  v.  E.  Tenn.,  V.  &  G.  R.  Co.,  30  Fed.  Rep.  904  (1887). 

2  Toledo,  Peoria  &  W.  R.  R.  v.  Patterson,  63  111.  304  (1872);  Phila- 
delphia, W.  &  B.  R.  R.  V.  Hoeflich,  62  Md.  300  (1884). 

3  Holmes  z;.  Wakefield,  12  Allen  (Mass.),  580  (1866);  State  v.  Kin- 
ney, 34  Minn.  311;  s.  c.  25  N.  W.  Reporter,  705  (1885);  Sanford  v. 
Eighth  Ave.  R.  R.,  23  N.  Y.  343  (1861). 

*  Arnold  v.  Penn.  R.  R.,  115  Penn.  135;  s.  c.  6  Cent-  Rep.  630 
(1887);  Railway  Co.  v.  Valleley,  32  Ohio  St.  345  (1877);  Louisville,  C. 
&  L.  R.  R.  V.  Sullivan,  81  Ky.  624  (1884);  Louisville  &  N.  R.  R.  v.  Lo- 
gan, 3  Lawy.  Rep.  Ann.  (Ky.)  80  (1889);  Atchison,  T.  &  S.  F.  R.  R.  v, 
Weber,  33  Kans.  543  (1885);  Connolly  v.  Crescent  City  R.  Co.,  3  Lawy. 
Rep.  133  (1888).  In  McClelland  v.  Louisville,  N.  A.  &  C  R.  Co.,  94 
Ind.  276  (1883),  it  was,  however,  held  that  if  the  conductor  had  once 
put  the  drunkard  in  a  safe  place,  he  was  not  bound  to  watch  him,  and 
keep  him  out  of  danger. 

It  was  held,  in  Missouri,  that  a  person  who  entered  a  car,  under  ad- 
vice that  a  ticket  which  he  had  previously  bought  was  still  valid,  al- 
though by  its  terms  it  had  expired,  and  had  resolved  not  to  pay  any 
fare,  never  became  a  passenger,  but  was  a  trespasser  from  the  begin- 
ning, and  could  be  ejected  anywhere,  and  was  not  entitled  to  the  bene- 
fit of  the  statute  that  passengers  can  only  be  ejected  from  the  cars  near 
a  station  or  freight  house.  Lillis  v.  St.  Louis,  Kansas  City  &  Northern 
R.  Co.,  64  Missouri,  464  (1877). 


174  THE  MODERN   LAW  OF  CARRIERS. 

quired  by  the  conductor,  could  only  be  ejected  at  a  usual 
station,  and  regulation  to  tbe  contrary  was  held  unreason- 
able and  void.^  The  passenger  is  entitled  to  a  reasonable 
time  to  find  and  produce  his  ticket,  or  pay  his  fare.*^ 

And  if  the  passenger  innocently  violate  a  regulation, 
even  if  he  is  somewhat  offensive  in  language  or  conduct, 
he  is  entitled  to  an  explanation  from  the  conductor.' 

It  has  been  held,  after  considerable  discussion  and 
some  rulings  to  the  contrary  at  nisi  prius^  that  if  a  pas- 
senger has  once  been  lawfully  ejected  from  a  train,  or 
even  if  the  train  has  been  stopped  for  the  purpose  of 
ejecting  him,  he  has  no  right  to  re-enter  the  same  ex- 
cept at  a  regular  station,*  and  not  even  then,  unless  he 

^  Maplesz'.N.Y.&N.H.R.R.,  38  Conn.  557(1871).  In  Downs  f.  N. 
Y.  &  N.  H.  R.  R.,  36  Conn.  287  (1869),  the  passenger  had,  by  mistake,  left 
his  commutation  ticket  at  home,  and  was  unable  to  show  it  when  called 
for;  and  it  was  held  that,  in  conformity  with  an  express  stipulation  in  his 
contract  with  the  company,  the  latter  had  the  right  to  demand  the  ordi- 
nary fare  for  the  passage,  and  that,  upon  his  refusal  to  pay,  the  con- 
ductor lawfully  ejected  him  from  the  cars  at  the  next  regular  station. 
Maples  V.  N.  Y.  &  N.  H.  R.  R.,  38  Conn.  557  (i 871),  differs  from 
the  case  of  Downs  v.  The  Same,  in  that  the  plaintiff  Maples  had  his 
commutation  ticket  about  his  person,  and  only  requested  a  reasonable 
time  to  find  it,  which  was  denied;  that  there  was  no  express  stipulation 
in  his  contract  with  the  company  that  he  should  pay  his  fare  for  the  trip 
if  his  ticket  was  not  shown  to  the  conductor,  to  whom  he  was  well 
known  as  a  commuter;  and  finally,  that  he  was  ejected  from  the  train 
at  a  place  other  than  a  regular  station.  In  this  case  it  was  held  that 
the  ejection  was  unlawful. 

=  Maples  V.  N.  Y.  &  N.  H.  R.  R.,  38  Conn.  557  (187 1);  Curl  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  63  Iowa,  417  (1884);  Robsori  v.  N.  Y.  Cen- 
tral &  H.  R.  R.  R.,  21  Hun,  387  (1880);  Hayes  v.  New  York  Central  & 
H.  R.  R.,  18  Am.  &  Eng.  R.  R.  Ca.  (N.  Y.)  363  (1884);  Clark  v.  Wil- 
mington &  W.  R.  R.,  18  Am.  &  Eng.  R.  R.  Ca.  (So.  Car.)  366  (1885); 
International  &  G.  N.  R.  R.  v.  Wilkes,  68  Tex.  617  (1887). 

'  Compton  V.  Von  Volkenburgh,  34  N.  J.  Law,  134  (1870). 

♦  O'Brien  v.  Boston  &  W.  R.  R.,  15  Gray,  20  (i860);  Nelson  v.  L.  L 
R.  R.,  7  Hun  (N.  Y.),  140  (1876);  Hibbard  v.  N.  Y.  &  Erie  R.  R..  15  N. 
Y.  455  (1857);  Pease  v.  D.,  L.  &  W.  R.  R.,  11  Daly  (N.  Y.),  350  (1883); 
s.  c.  loi  N.  Y.  367  (1886);  People  v.  Jillson,  3  Parker,  C.  C.  234  ( 1856); 
Hoffbauer  v.  D.  &  N.  W.  R.  Co.,  52  Iowa,  342  (1879);  R.  R.  Co.  v. 
Skillman,  39  Ohio  St.  444  (1883);  State  v.  Campbell,  32  N.  J.  Law,  309 
(1867).  In  the  Campbell  case  the  passenger  had  purchased  an  "excur- 
sion ticket,"  on  the  face  of  which  it  was  declared  that  it  was  "good  for 


CARRIER  TO  ENFORCE  REASONABLE  RULES.    1 75 

one  passage  on  the  day  sold  only."  The  passenger,  returning  upon  a 
subsequent  day,  purchased  an  ordinary  ticket  and  entered  a  train. 
Being  called  on  by  the  conductor  for  his  ticket,  he  produced  the  return 
coupon  of  the  spent  excursion  ticket,  keeping  the  one  he  had  just 
bought  out  of  view.  The  coupon  was  refused  and  his  fare  demanded, 
and,  not  complying  with  the  demand  nor  intimating  that  he  had  a  valid 
ticket,  he  was  ejected  at  a  regular  station,  after  considerable  resistance, 
which  caused  delay  and  inconvenience  to  the  train  and  other  passen- 
gers. After  his  expulsion,  and  before  the  train  started,  he  exhibited  his 
valid  ticket  to  the  conductor  and  attempted  to  re-enter  the  train,  but 
was  prevented  by  force.  Held,  that  the  conductor  had  the  right  to  ex- 
clude him. 

O'Brien  v.  N.  Y.  C.  &  H.  R.  R.  R.,  80  N.  Y.  236  (1880),  holds: 
That  where  the  train  is  stopped  for  the  sole  purpose  of  ejecting  a  pas- 
senger who  has  refused  to  pay  his  fare,  he  cannot  regain  his  right  to  be 
carried  by  a  tender;  but  where  the  train  stops  at  a  regular  stopping- 
place,  and  the  passenger,  before  being  ejected — or  others,  in  his  be- 
half— offer  to  pay  the  full  fare,  it  is  the  duty  of  the  conductor  to 
accept  it;  and  if  he  refuses,  and  ejects  the  passenger,  the  company  is 
liable.  In  Texas  it  is  held  that  if  the  passenger's  refusal  to  pay  the 
fare  demanded  is  not  willful,  but  based  on  an  honest  mistake,  the  con- 
ductor is  bound  to  allow  him  to  remain  on  the  train  if  he  tender  the 
right  amount  immediately  after  the  bell  to  stop  is  pulled.  Texas  &  P. 
R.  R.  Co.  V.  Bond,  62  Texas,  442  (1884).  In  Bland  v.  Southern  Pacific 
R.  R.,  55  Cal.  570  (1880),  it  was  held  that  where  a  passenger,  who  had 
no  ticket,  paid  the  conductor  the  price  for  a  ticket,  but  not  the  addi- 
tional charge  exacted  when  fare  was  paid  in  the  cars,  the  conductor 
could  not  lawfully  eject  him  until  after  he  returned  the  money,  and  that 
returning  it  after  the  ejection  was  insufficient  to  render  the  ejection  law- 
ful. Hoffbauer  v.  D.  &  N.  W.  R.  Co.,  supra,  tends  to  the  contrary.  In 
Chicago,  B.  &  Q.  R.  R.  v.  Bryan,  90  111.  126  (1878),  it  was  held  that  if 
the  passenger  had  paid  fare  to  the  station  at  which  he  was  evicted,  he 
had  the  right  there  to  re-enter  the  train  upon  paying  fare  from  there  to 
his  destination. 

In  Louisville  &  Nash.  R.  R.  v.  Garrett,  8  Lea  (Tenn.),  438  (1881), 
the  court  say:  "His  Honor  (below)  was  correct  when  he  told  the  jury, 
substantially,  that  if  another  person  offered  to  pay  the  fare  before  ejec- 
tion from  the  car,  the  carrier  was  bound  to  receive  it  and  transport  the 
passenger.  It  is  unimportant  to  the  carrier  from  whom  the  money 
comes.  If  it  is  the  proper  amount,  he  gets  what  he  is  entitled  to,  and 
must  perform  the  duty  imposed.  To  require  that  the  passenger  shall 
pay  his  own  money  would  be  absurd.  If  another  party  offers  to  pay  for 
him,  it. is  precisely  as  if  the  party,  finding  himself  without  money  to  pay, 
had  borrowed  the  amount  from  one  near  him  and  tendered  it.  The 
conductor  would  have  the  same  right  to  refuse  to  accept  the  money 
thus  borrowed  as  to  refuse  the  offer  made  in  this  case."  In  that  case 
the  offer  was  not  made  till  after  the  bell-rope  had  been  pulled  for  the 
train  to  stop,  but  court  held  it  should  have  then  been  accepted  and  the 
passenger  allowed  to  ride.     s.  P.,  Guy  v.  N.  Y.,  O.  &  W.  R.  R.,  30  Hun, 

399  (1883)-  ,        , 

In  South  Carolina  R.  R.  v.  Nix,  68  Georgia,  572  (1882),  the  court 


176  THE    MODERN    LAW    OF   CARRIERS. 

pays  liis  fare  from  the  station  at  which  he  originally  en- 
tered the  train. ^ 

The  carrier's  servants  are  bound  to  regard  the  age, 
condition  of  health,  and  other  circumstances  of  the  pas- 
senger before  determining  whether  to  eject  him.^ 

The  carrier  has  no  right  to  detain  a  passenger  at  the 
station,  at  which  he  alights,  until  he  produces  a  ticket  or 


held  that  the  passenger  would  have  the  right  to  re-enter  the  train  if  he 
tendered  the  proper  fare  before  the  train  started,  but  not  afterwards. 

In  Gould  V.  Chicago,  M.  &  St.  P.  R.  Co.,  18  Fed.  Rep.  155  (1883), 
it  was  held  that  if  the  passenger  had  been  abusive,  and  compelled  the 
conductor  to  resort  to  violence,  he  could  not  require  the  carrier  to  re- 
ceive him,  even  at  a  regular  station ;  but  that  if  no  such  misconduct 
were  shown  the  rule  would  be  otherwise. 

^  Stone  V.  Chicago  &  N.W.  R.  Co..  47  Iowa,  82  (1877);  s.  c.  29  Am. 
Rep.  458;  Swan  v.  Manchester  &  L.  R.,  132  Mass.  116  (1882).  In 
Louisville,  N.  &  G.  S.  R.  R.  v.  Harris,  9  Lea  (Tenn.),  180;  s.  c  16  Am. 
&  Eng.  R-  R.  Cas.  374  (1882),  the  right  to  re-enter  the  train  at  a  sta- 
tion, even  on  tender  of  the  full  fare,  was  denied.  In  this  case  the  pas- 
senger was  a  commuter,  the  violation  of  the  rule  which  forbade  him  to 
detach  coupons  was  technical  only,  and  the  rule  seems  to  have  been  ap- 
plied with  needless  severity. 

"^  Sheridan  v.  Brooklyn  City  R.  R.,  2>^  N.  Y.  39  (1867).  In  Louis- 
ville, Nashville  &  G.  S.  R.  R.  v.  Fleming,  14  Lea  (Tenn.),  128  (1884), 
it  was  held  that  if  an  infirm  person  told  the  conductor  that  his  ticket 
was  in  his  pocket,  and  the  conductor  undertook  to  search  for  it,  "he 
should  do  so  properly,  and  in  good  faith."  But  the  obligation  to  search 
is  denied.  It  was  held,  in  Curl  v.  Chicago,  R.  I.  &  P.  R.  Co.,  63  Iowa, 
417  (1884),  that  if  the  passenger,  through  no  fault  of  his  own,  had  failed 
to  get  a  ticket,  and  had  only  enough  money  to  pay  for  one,  but  not  the 
extra  charge  required  from  those  who  had  no  ticket,  he  was  entitled  to 
a  reasonable  time  to  obtain  it  from  other  passengers.  In  the  Fleming 
case  the  court  treat  this  as  a  question  of  contributory  negligence,  and 
state  that  the  rule  in  Tennessee  is  different  from  that  of  other  States,  in 
that  there  contributory  negligence  may  be  shown  in  mitigation  of  dam- 
ages, even  in  cases  where,  by  reason  of  the  willfulness  of  the  tort  com- 
mitted by  defendant's  agents,  it  is  not  a  defense.  East  Tenn.,  V.  &  G. 
R.  R.  V.  Fain,  12  Lea,  35  (1883);  Nashville  &  C  R.  R.  z'- Carroll,  6 
Heiskel,  347  (1871);  Louisville  &  N.  R.  R.  v.  Burke,  6  Cold.  (Tenn) 
45  (1868);  Nashville  &  C.  R.  R.  v.  NowUn,  i  Lea,  523  (1878).  It  has 
been  held  that  persons  unable  to  take  care  of  themselves  must  provide 
proper  assistance,  and  cannot  require  the  carrier  to  do  so.  New  Or- 
leans, J.  &  G.  N.  R.  R.  V.  Statham,  42  Miss.  607  (1869);  Hemingway 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  72  Wis.  42;  37  N.  W.  804  (1888);  Wil- 
letts  V.  Buffalo  R.  R.,  14  Barb.  585  (1853).  Compare  Owens  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co.,  8  S.  W.  (Mo.)  350  (iJ 


WHETHER  NOTICE  OF  RULES  IS   NECESSARY.        177 

pays  his  fare.^  But  though  there  is  no  lien  on  the  per- 
son, the  carrier  has  a  lien  on  the  passenger's  baggage  for 
his  unpaid  fare.^ 

Where  a  commuter  refused  to  show  his  ticket  or  pay 
his  fare,  it  was  held  that  the  company  might  eject  him  or 
forfeit  his  ticket,  but  could  not,  on  a  subsequent  occasion, 
refuse  to  sell  him  another  commutation  ticket.^ 

Where  a  passenger  has  been  in  the  habit  of  improp- 
erly carrying  merchandise  in  his  trunk,  the  carrier  may 
lawfully  require  him  to  sign  a  statement  as  to  the  con- 
tents of  his  trunk/ 

In  this  class  of  cases  we  have  no  English  authorities. 
In  England  no  facilities  are  afiforded  for  paying  fare  on 
the  cars,  and  a  ticket  can  only  be  procured  before  enter- 
ing them. 

SECTION   XI. 

WHETHER  NOTICE   OF   THE    RULES   IS   NECESSARY;     AND   IF   SO, 

WHAT  ? 

In  many  cases  it  is  held  that  persons  who  deal  with 
carriers,  and  especially  passengers  seeking  to  take  pas- 

^  Lynch  v.  Metropolitan  El.  R.  Co.,  90  N.  Y.  77  (1882);  ante,  pp. 
139,  140,  nn.  I,  2.  In  Sullivan  agst.  Old  Colony  R.  Co.,  18  N.  East. 
(Mass.)  678;  I  Lawy.  Rep.  Ann.  513  (1888),  a  drunken  and  disorderly 
person  was  put  into  the  baggage  car,  and  carried  to  his  destination. 
Held,  that  the  company  had  a  right  to  do  this,  and  were  not  bound  to 
put  him  into  the  hands  of  an  officer  at  the  next  station. 

2  Roberts  v.  Koehler  (U.  S.  C  Ct  Oregon),  30  Fed.  Rep.  94  (1887). 

3  Atwater  v.  Delaware,  L.  &  W.  R.  Co.,  48  N.  J.  Law,  55  (1886). 

*  Norfolk  &  W.  R.  Co.  v.  Irvine,  5  S.  E.  Rep.  (Va.)  533  (1888). 
Whether  it  can  require  an  affidavit  qiuere.  But  the  court  will  not  be 
critical  as  to  the  requirements  of  the  carrier  towards  a  passenger  who  is 
engaged  in  a  deliberate  attempt  to  make  occasion  for  a  suit  against  the 
carrier.     Same  v.  Same,  7  S.  E.  Rep.  (Va.)  233  (1888). 

Where  plaintiff  was  riding  on  a  car  with  his  assistant,  under  a 
drover's  pass  good  only  for  one,  and  told  the  conductor  if  it  was  not 
right  he  might  eject  his  assistant,  the  conductor  would  not  be  thereby 
justified  in  expelling  the  plaintiff.  Missouri  Pac.  R.  Co.  v.  Aiken,  9  S. 
W.  Rep.  (Texas),  437  (i( 

12 


lyS  THE   MODERN   LAW   OF   CARRIERS. 

sage  ou  railway  trains,  are  bound  to  make  enquiry  as  to 
the  rules  established  by  the  carrier  with  reference  to  the 
proposed  transit,  and  conform  thereto,  and  that  if  no  en- 
quiry be  made,  the  passenger  is  subject  to  the  reasonable 
rules  of  the  carrier  even  though  unknown  to  him/ 

On  the  other  hand  it  is  held  that  a  regulation  as  to 
the  time  within  which  the  ticket  must  be  used  is  not 
valid  unless  some  notice  is  given  to  the  purchaser  at 
the  time  he  buys  his  ticket/  The  same  rule  was  ap- 
plied, in  Illinois,  to  a  case  where  a  man  bought  a  ticket 
for  himself  and  family,  and  the  carrier's  rule  was  that  a 
son  over  twenty-one  3^ears  of  age,  even  though  residing 
with  his  father,  was  not  entitled  to  be  transported  under 
such  a  ticket/ 

The  decision  of  the  court  in  any  given  case  would 

^Cheney  v.  Boston  &  Me.  R.  R.,  ii  Mete.  (Mass.)  121  (1846);  El- 
more V.  Sands,  54  N.  Y.  512  (1874);  Beebe  z'.  Ayres,  28  Barb.  (N.  Y.) 
275  (1858).  In  this  latter  case  the  court  say  of  the  passenger:  ''He  is 
presumed  to  have  purchased  the  ticket  in  reference  to  the  regulations 
of  the  road."  Northern  R.  R.  v.  Page,  22  Barb.  (N.  Y.)  130  (1856); 
Dunphy  v.  Erie  R.  Co.,  42  N.  Y.  Super.  Ct.  128  (1877).  The  same  rule 
was  laid  down,  as  to  the  duty  of  the  passenger  to  ascertain  by  enquiry 
what  trains  would  stop  at  his  place  of  destination,  in  Duling  v.  Phila- 
delphia, W.  &  B.  R.  R.,  66  Md.  120;  5  Cent.  Rep.  570  (1886). 

In  McRae  v.  Wilmington  &  W.  R.  R.,  88  N.  C  526;  s.  c  43  Am. 
Rep.  745  (1883),  the  court  say:  "One  who  buys  a  ticket  is  bound  to  in- 
form himself  of  the  rules  and  regulations  of  the  company  governing  the 
transit  and  conduct  of  its  trains."  It  was  held,  therefore,  that  a  passen- 
ger who  bought  an  excursion  ticket  at  less  than  usual  rates,  was  bound 
to  ascertain  on  what  train  his  ticket  would  be  good;  that  a  rule  of  the 
carrier  limiting  its  validity  to  a  special  excursion  train  was  reasonable. 

So  it  is  held  that  a  condition  as  to  the  continuity  of  the  trip  need 
not  be  printed  on  the  ticket.  Drew  v.  Central  Pac  R.  R.,  51  Cal.  425 
(1876);  Oil  Creek  &  Allegheny  River  R.  Co.  v.  Clark,  72  Penn.  231 
(1872).  The  regulations  need  not  be  communicated  to  the  passenger, 
but  he  is  bound  by  them,  irrespective  of  notice.  State  v.  Overton,  24 
N.  J.  L.  435  (1854);  Terry  v.  Flushing.  N.  S.  &  C.  R.  R.,  13  Hun,  359 
(1878);  Dietrich  v.  Penn.  R.  R.,  71  Penn.  432  (1872).  In  the  Overton 
case,  however,  notice  had  been  published.  Atchison,  T.  &  S.  F.  R.  v. 
Gants,  38  Kans.  608;  17  Pac.  Rep.  54  (1888).  See  cases,  aiite^  p.  159, 
note  3,  post,  Ch.  XI,  sect.  i. 

-Penn.  R.  R.  v.  Spicker,  105  Penn.  142  (1884). 

3  Chicago  &  N.  W.  R.  Co.  v.  Chesholm,  79  111.  584  (1875). 


WHETHER    NOTICE   OF    RULES    IS    NECESSARY.         1 79 

doubtless  depend  upon  the  usages  of  the  business  of 
transporting  passengers,  and  the  extent  to  which  the 
traveling  public  had  conformed  to  them.  The  giving  of 
checks  for  baggage,  the  issuing  of  through  tickets  with  a 
coupon  for  each  railroad  forming  a  part  of  the  route,  are 
now  universal  in  the  United  States.  But  there  was  a 
time  in  the  history  of  railway  transportation  when  these 
facilities  were  not  customary.  Other  usages  spring  up 
from  time  to  time,  and  passengers  and  carriers  will  natu- 
rally conform  to  them,  and  special  notice  of  them  will 
neither  be  expected  nor  required.  It  has  become,  for  ex- 
ample, the  universal  custom  of  railway  companies  to  print, 
and  post  in  their  offices,  their  time-tables,  and  of  passen- 
gers to  ascertain  at  what  stations  particular  trains  are  to 
stop.  A  passenger  could  not  justly  complain  that  the 
train  he  took  did  not  stop  at  the  station  to  which  he  was 
bound,  if,  with  this  usage  in  force,  he  should  omit  to  in- 
quire whether  a  particular  train  was  to  stop  at  such  sta- 
tion. 

If  the  rules  and  regulations  of  the  carrier  are  printed 
on  the  ticket  delivered  to  the  passenger,  this  is  sufficient 
notice  to  him  of  the  rules  so  printed.^  And  in  some  cases 
it  is  held  that  posting  the  rules  in  a  conspicuous  place  in 
the  carrier's  public  office  is  sufficient  notice  to  the  public 
whq  do  business  there,  if  they  have  been  posted  long 
enough  to  enable  persons  in  the  exercise  of  due  diligence 
to  ascertain  what  the  rules  are.' 

1  Kelsey  v.  Michigan  Central  R.  R.,  28  Hun  (N.  Y),  460  (1882); 
Cresson  v.  Phil.  &  Reading  R.  R.,  11  Phila.  597;  s.  c.  32  Leg.  Int.  t,6^ 
(1875). 

2  Burlington  &  M.  R.  R.  v.  Rose,  11  Neb.  177  (1881);  Falkner  J7. 
Ohio  &  Miss.  R.  Co.,  55  Ind.  369  (1876).  In  Hart  v.  Baxendale,  6 
Excheq.  769  (185 1),  it  was  held  that  posting  a  notice  in  the  carrier's 
public  ofifice,  that  an  increased  charge  would  be  made  for  the  convey- 
ance of  certain  goods,  was  sufficient,  though  it  was  proved  that  the  ship- 
per of  the  goods  in  question  never  saw  the  notice,  and  they  were  re- 
ceived by  the  carrier  at  the  shipper's  place  of  business.  Proof  that 
regulations,  purporting  to  be  those  of  the  carrier,  were  posted  in  its  rail- 


l8o         THE  MODERN  LAW  OF  CARRIERS. 

Notice  that  a  coupon  is  not  good  if  detacTied  from  its 
book,  printed  on  the  coupon  and  on  the  book,  is  suf- 
ficient.^ 

A  former  employee  of  the  carrier  is  chargeable  with 
knowledge  of  its  rules. ^ 

If  the  carrier  desires  to  change  its  regulations  in  any- 
particular  in  which  they  affect  the  traveling  public,  it 
should  give  reasonable  notice  of  the  change.  Proof  of 
personal  notice  is  unnecessary,  but  the  change  should  be 
so  published  as  to  give  passengers  reasonable  opportunity 
to  be  informed  of  the  chan^e.^ 

road  car  is  sufficient  to  show  that  they  were,  in  fact,  its  regulations. 
Wright  V.  Cal.  Cent.  R.  Co.,  20  Pac.  Rep.  740  (1889). 

^  Boston  &  Maine  R.  R.  v.  Chipman,  146  Mass.  107  (1888). 

2  Virginia  Midland  R.  Co.  v.  Roach,  83  Va.  375  (1887). 

^  Kansas  Pac.  R.  Co.  v.  Kessler,  18  Kans.  523  (1877);  Lane  v.  E. 
Tenn.,  V.  &  Geo.  R.  R.,  5  Lea  (Tenn.),  124  (1880). 


CHAPTER  VIII. 

CONFLICT     OF     LAWS. 

There  is  probably  no  brancli  of  tbe  law  more  intricate, 
or  more  confused  with  conflicting  decisions,  than  that 
which  forms  the  subject  of  this  chapter.  The  text  writers 
have  not  succeeded  any  better  than  the  judges  in  dealing 
with  it.  As  judge-made  law  it  has  many  defects  and  in- 
consistencies, but  no  codifier  has  yet  shaped  it  into  sym- 
metry. 

I  shall  not  attempt  to  consider  the  subject  at  large. 
To  do  so  would  require  a  volume.  But  the  questions  upon 
carrier  s  contracts,  in  the  decision  of  which  the  conflicting 
laws  of  different  jurisdictions  have  been  invoked,  cannot 
be  passed  by  without  consideration.  Lines  of  steamers 
link  the  continents.  Lines  of  railroads  span  them.  The 
laws  of  the  country  where  the  contract  of  affreightment  is 
made  differ  from  those  of  the  country  where  its  perform- 
ance is  to  be  completed.  England  has  one  policy  as  to 
stipulations  limiting  the  liability  of  common  carriers. 
The  Federal  courts  declare  another  for  the  United  States. 
Our  different  States  disagree  between  themselves.  Stat- 
utes have  been  passed  which  complicate  the  subject.  Its 
difficulty  has  been  enhanced  by  the  changes  in  the  method 
of  doing  business  that  have  taken  place  during  the  past 
twenty-five  years. 

One  of  the  most  remarkable  features  in  the  history  of 
this  country  during  that  time,  has  been  the  growth  of 
great  corporations,  and  the  extension  of  their  operations 
into  many  different  States.  American  courts  found  in  the 
British  law  the  curious  fiction,  that  for  some  purposes 
Scotland  was  a  kingdom  foreign  to  that  of  England.    This 


1 82  THE   MODERN   LAW   OF   CARRIERS. 

was  probably  due  to  the  prejudice  entertained  by  the  En- 
glish of  King  James'  time  for  their  northern  neighbors. 
Our  courts  adopted  a  similar  rule,  and  held  that  the  States 
of  this  Union  were,  for  many  purposes,  foreign  to  each 
other.  And  this  rule  embarrassed  them  in  dealing  with 
corporations.  Technically  these  are  artificial  beings,  ow- 
ing their  existence  only  to  the  law  of  the  State  which  cre- 
ated them,  which  law  has  no  extra-territorial  force.  It 
was  gravely  questioned  at  one  time  whether  a  corporation 
had  power  to  contract  beyond  the  boundaries  of  the  State 
under  whose  laws  it  was  incorporated.  It  required  the  el- 
oquence and  the  farseeing  wisdom  of  Mr.  Webster  to  con- 
vince the  Supreme  Court  of  the  United  States  that  this 
contention  was  too  narrow  and  technical.  In  the  celebrated 
"Alabama  Appeal  Cases,"  one  of  which  only — The  Bank 
of  Augusta  V.  Earle — is  reported,^  it  was  held  that  a  cor- 
poration incorporated  under  the  laws  of  one  State  could 
make  a  valid  contract  in  another,  unless  prohibited  by  the 
laws  of  that  State.  Since  that  time  many  States  have 
adopted  general  laws  for  the  creation  of  corporations,  and 
they  have  practically  become  limited  partnerships,  capable 
of  suing  and  being  sued  by  the  firm  name,  and  having 
perpetual  succession. 

For  a  long  time,  too,  it  was  questioned  whether  a  com- 
mon carrier  incorporated  under  the  laws  of  one  State  had 
any  power  to  make  a  contract  to  transport  persons  or 
property  beyond  the  limits  of  that  State.  In  Bissell  v. 
The  Michigan  Southern  &  N.  Ind.  R.  R.^  this  defense  of 
ultra  vires  was  set  up  to  an  action  for  injuries  received  by 
a  passenger,  on  the  cars  of  the  defendant,  outside  the  limits 
of  the  State  which  chartered  it.  The  court  sustained  the 
right  of  action  on  the  ground  that  the  corporation  had  re- 
ceived the  consideration  of  the  contract,  and  was  estopped 

1  13  Peters,  519  (1839). 
^  22  N.  Y.  258  (i860). 


LAW   PLACE   OF   CONTRACT.  1 83 

to  set  Up  this  defense  when  redress  was  sought  for  its 
breach. 

The  validity  of  such  contracts  is  now  well  settled,  and 
we  see  the  Pennsylvania  Railroad  Company  practically 
managing  a  line  of  railway  from  New  York  to  Chicago, 
extending  through  seven  States.  The  great  telegraph 
companies  extend  their  lines  over  a  field  even  wider.  And 
the  courts  have  had  no  more  difficult  task  than  the  de- 
cision of  the  question :  by  what  law  should  contracts  for 
interstate  and  foreign  transportation  be  interpreted,  and 
the  consequences  of  their  breach  be  determined  ? 

The  important  question  to  the  consideration  of  which 
this  chapter  is  devoted  is  this :  Under  what  circumstances 
will  a  court,  sitting  in  a  forum,  the  public  policy  of  which 
is  opposed  to  limitations  of  liability  for  the  negligence  of  a 
carrier's  servants,  enforce  such  limitations  when  the  con- 
tract is  made  or  to  be  performed  in  another  jurisdiction? 

For  example :  a  contract  is  made  in  Bngland,  between 
parties  domiciled  there,  by  which  one  agrees  to  transport 
to  Philadelphia  the  goods  of  the  other.  The  contract  con- 
tains a  clause  that  the  carrier  shall  not  be  liable  to  the 
shipper  for  any  damages  caused  by  the  negligence  or  bar- 
ratry of  the  carrier's  servants.  In  Bngland  this  clause  is 
declared  by  the  courts  not  to  be  against  the  public  policy 
of  that  country.  In  Pennsylvania  it  is  declared  by  the 
courts  to  be  against  the  public  policy  of  that  State.  If 
loss  ensues  from  the  excepted  cause,  and  the  carrier  is 
sued  in  Pennsylvania,  shall  he  have  the  benefit  of  the  ex- 
emption ? 

We  will  first  consider  the  general  rules  which  ought 
to  guide  courts  in  determining  the  validity  of  particular 
stipulations  in  contracts  made  in  one  jurisdiction,  to  be 
partly  or  wholly  performed  in  another. 

I.  A  contract  which  is  lawful  in  the  country  where  it 
is  made  and  is  to  be  performed  is  valid  everywhere,  and 


184  THE   MODERN   LAW   OF   CARRIERS. 

the  courts  of  every  country  in  which  its   enforcement  is 
sought  should,  therefore,  give  effect  to  its  provisions.* 

^  In  Hale  v.  N.  J.  Steam  Nav.  Co.,  15  Conn.  539;  s.  c  39  Am.  Dec. 
398  (1843),  which  was  one  of  the  cases  growing  out  of  the  loss  of  the 
Lexington,  the  court  say:  ** Contracts  are  to  be  construed  according  to 
the  laws  of  the  State  where  made,  unless  it  is  presumed  from  their  tenor 
that  they  were  entered  into  with  a  view  to  the  laws  of  some  other  State. 
Bartsch  v.  Atwater,  i  Conn.  409,  416  (1815);  Smith  v.  Mead,  3  Id.  253; 
s.  c.  8  Am.  Dec.  183  (1820);  Brackett  v.  Norton,  4  Id.  517;  s.  c  10  Am. 
Dec.  179  (1823).  There  is  nothing  in  this  case,  either  from  the  loca- 
tion of  the  parties  or  the  nature  of  the  contract,  which  shows  that  they 
could  have  had  any  other  law  in  view  than  that  of  the  place  where  it 
was  made.  Indeed,  as  the  goods  were  shipped  to  be  transported  to 
Boston  or  Providence,  there  would  be  the  most  entire  uncertainty  what 
was  to  be  the  law  of  the  case  if  any  other  rule  were  to  prevail.  We 
have,  therefore,  no  doubt  that  the  law  of  New  York,  as  to  the  duties  and 
liabilities  of  common  carriers,  is  to  be  the  law  of  the  case." 

Story  on  Conflict  of  Laws,  section  280,  says  that,  in  general,  the 
validity,  nature,  obligation  and  interpretation  of  a  contract  are  to  be 
governed  by  the  law  of  the  place  of  performance,  "in  conformity  to  the 
presumed  intention  of  the  parties."  Chancellor  Kent,  2  Comm.  461, 
note  c,  states  the  rule  differently:  "The  general  principle  is,  that  as  to 
contracts  purely  personal,  their  construction  is  governed  by  the  law  of 
the  place  where  they  were  made,  the  consequences  of  their  breach  by 
that  of  the  country  where  they  are  enforced."  So  Lord  Langdale,  Mas- 
ter of  the  Rolls,  Cooper  v.  Earl  of  Waldegrave,  2  Beav.  282  (1840). 

Knowlton  v.  Erie  R.  Co.,  19  Ohio  St.  260;  s.  c.  2  Am.  Rep.  395 
(1869).  This  was  an  action  for  injuries  caused  the  plaintiff  by  the  neg- 
ligence of  defendant's  servants.  By  the  terms  of  the  contract  the 
plaintiff  was  to  be  carried  gratuitously,  and  was  to  assume  all  risk  of  in- 
jury arising  through  the  negligence  of  defendant's  servants  or  other- 
wise. Held,  that  the  validity  of  the  contract  must  be  determined  by 
the  law  of  New  York,  and  that,  as  it  was  valid  in  that  State,  the  plaint- 
iff could  not  recover.  In  this  case,  however,  the  contract  was  wholly 
to  be  performed  within  the  State  of  New  York. 

In  Shuenfeldt  v.  Junkermann,  20  Fed.  Rep.  357  (1884),  a  question 
arose  as  to  the  validity  of  a  contract  negotiated  in  Iowa,  which  was  not 
to  take  effect  until  approved  by  the  principals  in  Chicago.  The  con- 
tract was  valid  by  the  laws  of  Illinois,  but  void  by  the  laws  of  Iowa. 
The  United  States  Circuit  Court  for  the  District  of  Iowa  held  that  the 
place  of  the  contract  was  the  place  where  it  was  consummated,  and  not 
that  where  it  was  negotiated.  A  recovery  upon  the  contract  was  there- 
fore sustained.  It  is  to  be  observed  that  in  this  case  the  goods  in 
question  were  to  be  delivered  in  Iowa.  That,  therefore,  was  certainly 
the  place  of  performance.  This  case  must  therefore  be  considered  as 
an  authority  for  the  proposition  that  a  court  sitting  in  the  State  where 
a  contract  is  to  be  performed  will  enforce  it,  if  it  is  valid  by  the  law  of 
the  State  where  it  is  made.  In  other  words,  its  validity  is  determined 
by  the  lex  loci  contractus.     Story,  Conflict  of  Laws,  sects.  286,  286a. 

s.  p.  Tajbott  V.  Merchants'  Despatch  Trans.  Co.,  41  Iowa,  247  (1875); 


LAW  PLACE  OF   PERFORMANCE.  185 

An  exception  to  this  first  rule  may  be  thus  stated.  No 
court  is  bound  to  enforce  a  contract  intrinsically  wicked 
{malum  in  se),  nor  one  the  enforcement  of  which  is  pro- 
hibited by  the  express  legislation  of  the  forum  {nialum 
prohibitiiin)} 

II.  When  a  contract  is  made  in  one  country,  to  be 
wholly  performed  in  another,  its  validity  is  to  be  deter- 
mined by  the  law  of  the  place  of  performance,  unless  the 
contract  expressly  provide  otherwise.^ 

Malpica  v.  McKown,  i  Louisiana,  248;  s.  c.  20  Am.  Dec.  279  (1830). 
In  Turner  v.  Lewis,  2  Mich.  350  (1852),  the  court  held  that  in  order 
that  a  lien  might  attach  under  a  Michigan  statute  for  the  collection  of 
demands  against  ships  for  a  breach  of  contract  of  affreightment,  the 
"contract  ^sic)  must  arise"  in  that  State,  and  that  a  lien  did  not  at- 
tach, in  case  of  breach,  where  the  contract,  though  mide  in  another 
State,  was  to  be  performed  in  Michigan.  Burckle  v.  Eckhart,  3  N.  Y. 
132  (1849),  is  directly  the  reverse,  and  seems,  to  the  author,  to  be  much 
more  in  harmony  with  the  leading  authorities. 

^  In  Andrews  against  Pond,  13  Pet.  65  (1839),  the  general  rule  was 
held  to  be  that  the  law  of  the  place  of  performance  is  to  govern.  This 
does  not  apply,  however,  where  a  contract  is  made  in  one  State  to  evade 
its  laws,  and  in  direct  violation  of  its  statutes-  In  ex  parte  Dickinson, 
29  So.  Car.  453 ;  s.  c.  sub  nom.  Sheldon  v.  Blauvelt,  7  S.  E.  Rep.  593 
(1888),  it  was  held  that  an  assignment  made  in  New  York,  and  valid  by 
the  laws  of  that  State,  did  not  operate  to  transfer  title  to  property  in 
South  Carolina  because  it  contained  preferences.  The  statute  of 
South  Carolina  provided  that  an  assignment  with  preferences  (except  to 
employees)  should  be  void.  On  the  other  hand  it  is  held  that  a  pur- 
chase, valid  in  the  State  where  it  was  made,  transferred  a  good  title  to 
the  railway  ticket  which  was  the  subject  matter  of  the  sale,  although  the 
ticket  was  partly  to  be  used  in  a  State  where  the  contract  of  purchase 
was  prohibited.  Sleeper  v-  Penn.  R.  R.,  100  Penn.  259  (1882).  Among 
the  cases  cited  in  support  of  the  second  rule  {post,  p.  185,  n.  2)  there  are 
many  in  which  the  contract  under  consideration  was  invalid  by  the  law 
of  the  forum,  but  was  nevertheless  enforced.  See,  also,  the  cases  under 
the  usury  Idiw?,,  post,  p.  187,  n.  2. 

^  "The  general  principle  in  relation  to  contracts  made  in  one  place 
to  be  performed  in  another  is  well  settled.  They  are  to  be  governed 
by  the  law  of  the  j^lace  of  performance."  Miller  v.  Tiffany,  i  Wall. 
298,  310  (1863);  Pritchard  v.  Norton,  106  U.  S.  124  {1882);  Junction 
Railroad  Co  v.  Bank  of  Ashland,  12  W;ill.  226  (1870);  Bell  v.  Bruen,  r 
How.  169,  182  (1843);  Le  Breton  v.  Miles,  8  Paige,  261  (1840);  Osgood 
V.  Bauder,  75  Iowa,  550;  39  N.  W.  Rep.  887  (1888). 

The  rule  thus  stated  was  one  of  the  first  to  be  applied  to  the  solu- 
tion of  the  many  intricate  questions  that  arose  from  the  conflict  be- 


1 86  THE   MODERN   LAW   OF   CARRIERS. 

The  reason  given  for  the  decisions  to  which  reference 
has  been  had,  is  that  parties  are  presumed  to  have  con- 
tracted with  reference  to  the  law  of  the  place  of  perform- 
ance.    This  presumption,  in  most  cases,  has  been  treated 

tween  the  laws  of  different  countries,  and  is  expressed  with  precision  by 
the  writers  on  the  civil  law. 

"  Vulgo  quidem  ita  traditum  invenio,  observare  debere  statiitum,  non 
loci  illitis  ubi  ventilatitr  resiitutionis  gtiaestio,  neque  etiam  regionis  illius 
ubi  laedens  aiit  laesus  dumic ilium  fovet,  sed  magis  illius  territorii  in 
quo  contractus  seu  negotium  davtnosu7ti  celebratum  est :  nisi  co?itr actus 
i/iiplei/ientuni  ad  aliu/n  locum  sit  destinattim,  ttcnc  enim  hujus  loci  leges 
in  judicando  spectandas  esseP  Voet  ad  Pand.  vol.  i,  Paris  ed.,  p.  315, 
lib.  4,  tit.  I,  sect.  29. 

To  the  same  effect  is  The  Digest,  Lib.  XLIV,  tit.  VII,  21. 

^^Contraxisse  unusquisque  in  eo  loco  intelligitur  in  quo,  ut  solver  it.,  se 
obligavitP 

This  rule  has  been  carried  so  far  as  to  sustain  the  validity  of  a  con- 
tract for  a  loan  which  was  usurious  and  void  by  the  law  of  the  place 
where  it  was  made,  but  valid  by  the  law  of  the  place  where  the  money 
was  payable.  Andrews  v.  Pond,  13  Peters,  65,  78  (1839);  Miller  v.  Tif- 
fany, I  Wall.  298,  310  (1863);  post,  p.  187,  n.  2. 

So  in  Penobscot  &  Kennebeck  R.  R.  Company  v.  Bartlett,  12  Gray, 
244  (1858),  the  court  say  (p.  246),  referring  to  a  contract  made  in  Bos- 
ton, of  subscription  to  stock  in  a  railroad  in  Maine:  "We  are  of  the 
opinion  that  the  validity,  obligation  and  interpretation  of  the  contract 
must  be  governed  by  the  law  of  the  State  of  Maine.  .  .  .  We  can- 
not doubt  that  the  place  of  performance  of  the  contract  was  in  the 
State  of  Maine,  and  that  it  was  so  understood  and  intended  by  the  par- 
ties." 

In  Burckle  v.  Eckhart,  3  N.  Y.  132  (1849),  it  was  held  that  where  a 
contract  was  made  in  Oswego  for  the  manufacture  of  flour  there,  to  be 
delivered  in  Canada,  the  cause  of  action  arose  in  Canada,  and  the  per- 
formance of  the  contract  was  to  be  regulated  according  to  the  law  of 
Canada.  In  Cox  v.  The  United  States,  6  Pet.  172,  202  (1832),  a  bond 
was  executed  in  Louisiana,  conditioned  that  the  principal,  who  was  a 
governrnent  officer,  should  account  at  Washington.  It  was  held  that,  in 
construing  the  bond,  the  law  of  the  place  of  performance  was  to 
govern,  and  the  liability  of  the  sureties  was  determined  by  that  law. 

In  Brown  v.  Camden  &  Atlantic  R.  R.,  83  Penn.  316  (1877),  the 
contract  was  made  in  Pennsylvania  with  a  New  Jersey  railroad  com- 
pany, to  transport  a  passenger  and  his  trunk  from  Philadelphia  to 
Atlantic  City,  N.  J.  The  trunk  was  lost,  and  it  was  held  that  the  lia- 
bility of  the  carrier  was  to  be  determined  by  the  law  of  New  Jersey. 
The  court  says  (p.  318): 

"It  is  perfectly  well  settled  by  a  host  of  authorities,  which  it  would 
be  an  affectation  of  learning  to  cite,  that  it  is  the  law  of  the  place  of 
performance  by  which  the  mode  of  fulfilling  a  contract  and  the  measure 
of  liability  for  its  breach  must  be  determined." 


LAW   PLACE   OF   PERFORMANCE.  1 87 

by  the  courts  as  a  conclusive  one,  and  no  evidence  of  the 
intention  of  the  parties  in  that  regard  has  been  required/ 
The  only  exception  to  this  rule  just  stated,  as  to  the 
law  of  the  place  of  performance,  is  one  relating  to  con- 
tracts for  the  payment  of  interest  for  the  loan  of  money. 
In  that  case  the  courts  have  inclined  to  allow  the  parties 
to  stipulate  for  the  rate  of  interest  allowed  by  the  law  of 
either  place,  and  have  thus  frequently  enforced  contracts 
which  were  void  by  the  positive  legislation  of  the  State  in 
which  they  were  made,  but  which  were  valid  by  the  law  of 
the  place  of  performance.^  Nevertheless  the  rule  thus 
stated  is  not  controlling  in  our  present  enquiry,  for  it  is 
seldom,  indeed,  that  a  contract  of  affreightment  is  made 
in  one  country  to  be  wholly  performed  in  another.  The 
ordinary  cases,  and  those  which  are  difficult,  are  where  a 
contract  is  made  in  one  country,  partly  to  be  performed  in 
that,  partly  to  be  performed  in  other  States — or  on  the 
high  seas — and  partly  to  be  performed  in  a  country  other 
than  that  of  the  place  of  contract. 

III.  The  construction  of  the  language  used  in  a  con- 
tract is  to  be  determined  by  the  law  of  the  State  in  which 
it  is  made.^ 

1  Prentiss  v.  Savage,  13  Mass.  20  (1816).  In  this  case  the  court  say: 
"It  seems  to  be  an  undisputed  doctrine,  with  respect  to  personal  con- 
tracts, that  the  law  of  the  place  where  they  are  made  shall  govern  in  their 
construction,  except  when  made  with  a  view  to  performance  in  some 
other  country,  and  then  the  law  of  such  country  is  to  prevail.  This  is 
nothing  more  than  common  sense  and  sound  justice,  adopting  the  prob- 
able intent  of  the  parties  as  to  the  rule  of  construction.  .  .  .  And 
it  is  also  to  be  presumed,  when  the  contract  is  to  be  executed  in  any 
other  country  than  that  in  which  it  is  made,  that  the  parties  take  into 
their  consideration  the  law  of  such  foreign  country.  The  latter  branch 
of  the  rule,  if  not  so  obviously  founded  upon  the  intention  of  the  ])arties 
as  the  former,  is  equally  well  settled  as  a  principle  in  the  law  of  con- 
tracts."    See  aiite^  p.  185,  n.  2;  post,  pp.  196-199. 

''  Rail  Road  Co.  v.  Bk.  of  Ashland,  12  Wall  226  (1870);  Depau  v. 
Humphreys,  8  Mart.  N.  S.  (La.)  i  (1829);  ante,  p.  186,  note. 

*  2  Kent  Comm.  458,  461,  n.  c;  Story  Conf.  Law,  sect.  272;  Scud- 
der  V.  Union  Nat.  Bank,  91  U.S.  406  (1875).  (See  this  case  considered 
in  Dickinson  v.  Edwards,  77  N.  Y.  573  [1879].)     Aymar  v.  Sheldon,  12 


1 88  THE    MODERN    LAW   OF   CARRIERS. 

IV.  In  many  cases  of  maritime  contracts  courts  have 
held  that  their  validity  is  to  be  determined  by  the  law  of 
the  flag,  that  is  to  say,  by  the  law  of  the  nationality  to 
which  the  ship  belonofs. 

This  rule  has  been  advocated,  on  the  ground  that  it 
relieves  the  court  from  the  difficulties  which  have  been 
found  to  attend  the  application  of  the  rule  firstly  stated 
in  this  chapter,  to  the  case  of  contracts  made  in  one  coun- 
tr}^,  but  to  be  performed  in  several.^ 

Wend.  439  (1834);  Scott  v.  Pilkington,  15  Abb.  Pr.  280  (1861);  Fergu- 
son V-  Fyffe,  8  CI.  &  Fin.  121,  141  (1841);  Waters  e'.  Cox,  2  Bradwell 
(III.  App.),  129  (1878).  In  this  case  the  construction  of  the  contract 
and  the  rights  of  the  parties  under  it  were  held  to  be  fixed  by  the  law  of 
the  State  where  the  contract  was  made,  and  these  rights  remained 
unchanged,  notwithstanding  the  removal  of  the  parties  to  a  State  where 
a  different  construction  would  have  been  given  to  the  contract.  Penn. 
Co.  V.  Fail-child,  69  111.  260  (1873);  McDaniel  v.  Chicago  &  N.  W.  R. 
Co.,  24  Iowa,  412  (1868). 

*  Gaetano  &  Maria,  7  Prob.  Div.  137  (1882);  revg.  s.  c.  Ibid,  i 
(1881);  Lloyd  V.  Guibert,  6  Best  &  Smith,  100  (1865).  In  this  case  a 
British  subject,  at  a  Danish  island,  chartered  from  its  master  a  ship  be- 
longing to  a  French  subject,  for  a  voyage  to  Havre,  London  or  Liver- 
pool, at  the  charterer's  option.  While  on  its  voyage  to  Liverpool,  dam- 
age accrued,  and  the  question  arose  as  to  whether  the  Danish,  the  En- 
glish or  the  French  law,  or  the  law  of  Portugal  (in  which  country  a 
bottomry  bond  was  given)  should  apply.  The  court  held  that  the  law 
of  France  governed  the  case:  "And  we  think  that,  as  far  as  regards  the 
implied  authority  of  the  master  of  a  ship  to  bind  his  owners  personally, 
the  flag  of  the  ship  is  notice  to  all  the  world  that  the  master's  authority 
is  that  conferred  by  the  law  of  that  flag;  that  his  mandate  is  contained 
in  the  law  of  that  country,  with  which  those  who  deal  with  him  must 
make  themselves  acquainted  at  their  peril."  Affirmed,  6  Best  &  Smith, 
120;  s.  c,  L.  R.  I  Q.  B.  115  (1865),  where  the  court  says  that  the  ship 
"was,  as  it  were,  a  floating  island,  over  which  France  had  as  absolute, 
and  for  all  purposes  of  peace  as  exclusive  a  sovereignty,  as  over  her 
dominions  by  land,  and  which,  even  whilst  in  a  foreign  port,  .  •  • 
was  never  completely  removed  from  French  jurisdiction." 

Pope  V.  Nickerson,  3  Story.  465  (1844).  In  this  case  a  contract  was 
made  in  Malaga  by  the  master  of  a  vessel  for  shipment  of  a  cargo  from 
Malaga  to  Philadelphia.  While  on  the  voyage  the  vessel  and  cargo  were 
damaged,  and  sold  by  the  master  in  Bermuda.  The  vessel  was  owned 
in  Massachusetts,  and  this  action  having  been  brought  by  the  owner  of 
the  cargo  against  the  owners  of  the  vessel,  it  was  held  that  the  liability 
of  the  latter  was  governed  by  the  laws  of  Massachusetts,  and  not  by 
those  of  Pennsylvania  or  Spain. 

The  Woodland,  14  Blatchf.  499  (1878);   affg.  7  Ben.  no  (1874). 


LAW   OF   THE   FLAG.  1 89 

It  seems  clear  that  the  authority  of  the  master  to  bind 
his  owners,  and  to  hypothecate  or  sell  the  ship  or  the  cargo, 

This  was  a  case  where  a  British  vessel,  bound  from  Montevideo  to  New 
York,  put  into  the  Danish  port  of  St.  Thomas  for  repairs.  The  question 
arose  as  to  whether  the  master  had  authority  to  create  a  lien  in  the  for- 
eign port  of  distress  in  any  other  mode  than  by  a  bottomry  bond.  Ac- 
cording to  the  English  law,  as  held  in  that  case,  and  as  since  held  by 
the  House  of  Lords  (reversing  several  prior  decisions,  The  Sara,  14  Aj  p. 
Ca.  209  [1889]),  a  lien  could  only  be  created  by  such  a  bond,  while  in 
the  United  States  that  formality  was  not  necessary.  The  court  held  that 
the  law  of  England  applied:  "It  seems  to  be  settled  that  the  question 
is  to  be  determined  by  the  law  of  the  country  of  which  the  master  was 
a  citizen,  and  under  whose  flag  the  vessel  sailed,  and  not  by  the  law  of 
the  port  where  the  supplies  were  furnished,  or  of  the  country  where  the 
lien  is  sought  to  be  enforced."  The  case  was  affirmed  on  another 
ground  by  the  Supreme  Court.  104  U.  S.  180  (1881).  The  same  rule 
was  applied  to  the  determination  of  the  validity  of  clauses  of  exemption 
in  a  bill  of  lading.  The  Titania,  19  Fed.  Rep.  loi  (1S83).  See,  also. 
The  John  Ritson,  35  Fed.  Rep.  663  {1888);  Force  v.  Providence  Wash- 
ington Ins.  Co.,  35  Fed.  Rep.  767  (1888). 

In  Malpica  v.  McKown,  i  Louisiana,  248  (1830),  the  court  held  that 
when  the  law  of  the  country  where  the  contract  of  affreightment  is  en- 
tered into,  and  to  which  the  journey  is  to  be  made,  differs  from  the  law 
of  the  place  where  the  owner  resides,  the  former  must  govern.  And  the 
same  court,  in  Arayo  v.  Currel,  i  Louisiana,  528  (1830),  again  decided 
the  same  point  in  a  similar  way.  Both  of  these  Louisiana  cases  are 
criticised  by  Justice  Story  in  the  case  of  Pope  v.  Nickerson,  cited 
supra. 

In  The  Montana,  reported  stib  nom.  Liverpool  &  G-  W.  S.  Co.  v. 
Phenix  Ins.  Co.,  129  U.  S.  397  (1889);  affg.  s.  c.  22  Fed.  Rep.  715 
(1884);  affg  17  Fed.  Rep.  377  (1883),  contracts  of  affreightmei^t  had 
been  made,  mostly  in  the  State  of  New  York,  for  the  transportation  of 
goods  to  Liverpool.  Several  of  them  were  made  by  railroad  companies, 
and  were  not  only  for  inland  transportation  to  New  York  city,  but  also 
from  New  York  to  Liverpool.  The  vessel,  sailing  under  the  British  flag, 
was  wrecked  on  the  Welsh  coast,  and  this,  as  the  court  found,  was  due 
to  the  negligence  of  the  captain.  The  Supreme  Court  held  that  the  law 
of  the  United  States  must  govern  the  case,  and  not  the  law  of  the  flag. 

In  The  Brantford  City,  29  Fed.  Rep.  373  (1886),  it  was  held  the  lex 
loci  contractus  must  govern  and  determine  the  validity  of  clauses  of  ex- 
emption in  a  bill  of  lading,  and  that  such  clauses  in  a  bill  of  lading  de- 
livered in  Boston,  Mass.,  for  transportation  on  a  British  ship  to  En- 
gland, were  invalid. 

Re  Missouri  S.  S.  Co.,  58  Law  T.  Rep.  (N.  S.)  377  (1888);  s.  c.  37 
Alb.  L.  J.  518;  affd.  Weekly  Notes,  Notes  of  Cases,  p.  90,  May  11, 
1889,  is  directly  opposed  to  The  Brantford  City,  which  it  quotes. 
Foreign  ships,  while  in  another  country,  dealing  with  its  citizens,  owe  a 
temporary  allegiance  to  its  laws,  and,  in  respect  to  such  contracts,  are 
subject  to  the  law  of  that  jurisdiction  rather  than  that  of   the  home 


I90         THE  MODERN  LAW  OF  CARRIERS. 

is  to  be  governed  by  tlie  law  of  the  flag  in  the  absence  of 
express  authority.  The  decisions  on  this  subject  are 
placed  solely  on  reasons  springing  out  of  the  law  of 
agency.  For  this  very  reason  it  would  seem  that  they 
are  equall}^  applicable  to  the  authority  of  any  agent  other 
than  the  captain,  and  therefore  to  the  authority  of  any 
agent  authorized  to  contract  for  the  shipment  of  goods  on 
board  a  particular  vessel. 

The  rule  on  the  subject  has  the  great  merit  of  sim- 
plicity. A  party  contracting  with  an  agent  of  a  foreign 
ship  can  always  ascertain  the  extent  of  his  authority  un- 
der the  law  of  that  country  to  which  the  ship  belongs. 
For  example :  the  British  law,  and  the  extent  of  the  au- 
thority of  the  agent  of  a  British  ship,  are  well  known  in 
the  commercial  community.  And  the  same  is  true,  to  a 
large  degree,  of  the  law  of  the  other  commercial  countries 
of  Europe. 

Some  light  may  be  thrown  upon  this  subject  of  the 
law  of  the  flag  by  a  consideration  of  the  rule  that  has, 
from  the  necessity  of  the  case,  been  adopted  as  to  the  ter- 
ritorial status  of  a  vessel  upon  the  high  seas.  No  coun- 
try has  exclusive  jurisdiction  of  the  part  of  the  earth 
where  she  happens  to  be.  Yet  she  is  not,  for  that  reason, 
beyond  the  reach  of  law.  It  is  well  settled  that  a  ship  on 
the  high  seas  is  to  be  considered  as  part  of  the  territory 
of  the  nation  to  which  she  belongs ;  ^  and  it  would  seem 

port.  The  validity  of  a  maritime  lien  depends  upon  the  law  of  the 
place  where  it  is  created,  not  on  that  of  the  flag.  The  Scotia,  35  Fed. 
Rep.  907,  910  (188S).  Accordingly  it  has  been  held  in  numerous  cases 
that  a  materialman  has  a  lien  for  supplies  furnished  to  a  ves>el  in  a  for- 
eign port,  although  by  the  law  of  her  flag  her  master  had  no  power  to 
create  such  a  lien.  The  Eliza  Jane,  i  Surague.  152  (1847);  Hatton  v. 
The  "Melita,"  3  Hughes,  497  (1879^;  The  Walkyrien,  11  Blatchf.  241 
(1873);  affg.  3  Bened.  394  (1869);  The  J.  F.  Spencer,  5  Bened.  151 
(1871);  The  Selah,  4  Sawy.  40  (1876).  In  these,  as  in  most  of  the 
cases,  the  courts  have  endeavored  to  support  the  validity  of  the  con- 
tract or  enforce  the  alleged  lien. 

1  Crapo  V.  Kelly,  16  Wall.  610  (1872).     At  p.  624  the  court  say: 
"We  are  of  the  opinion,  for  the  purpose  we  are  considering,  that  the 


LAW   OF   THE   FLAG.  I91 

that  the  consequences  of  a  tort  committed  upon  or  by  her, 
when  she  is  on  the  high  seas,  should  be  determined  by 
those  laws. 

ship  Arctic  was  a  portion  of  the  territory  of  Massachusetts,  and  the  as- 
signment by  the  insolvent  court  of  that  State  passed  the  title  to  her,  in 
the  same  manner  and  with  the  like  effect  as  if  she  had  been  physically 
within  the  bounds  of  that  State  when  the  assignment  was  executed. 

"The  rule  is  thus  laid  down  by  Mr.  Wheaton  in  his  treatise  on  In- 
ternational Law  (8th  ed.,  sect.  106,  et  seq.):  'Both  the  public  and  pri- 
vate vessels  of  every  nation  on  the  high  seas,  and  out  of  the  territorial 
limits  of  any  other  State,  are  subject  to  the  jurisdiction  of  the  State  to 
which  they  belong.  Vattel  says  that  the  domain  of  a  nation  extends  to 
all  its  just  possessions,  and  by  its  possessions  we  are  not  to  understand 
its  territory  only,  but  all  the  rights  it  enjoys.  And  he  also  considers  the 
vessels  of  a  nation  on  the  high  seas  as  portions  of  its  territory.  Grotius 
holds  that  sovereignty  may  be  acquired  over  a  portion  of  the  sea.'  As 
an  illustration  of  the  proposition  that  the  ship  is  a  portion  of  the  terri- 
tory of  the  State,  the  author  proceeds:  'Every  State  has  an  incontest- 
able right  to  the  service  of  all  its  members  in  the  national  defense,  but 
it  can  give  effect  to  this  right  only  by  lawful  means.  Its  right  to  reclaim 
the  military  service  of  its  citizens  can  be  exercised  only  within  its  own 
territory,  or  in  some  place  not  subject  to  the  jurisdiction  of  any  other 
nation.  The  ocean  is  such  a  place,  and  any  State  may  unquestionably 
there  exercise,  on  board  its  own  vessels,  its  right  of  compelling  the  mili- 
tary or  naval  services  of  its  subjects.' 

"Chancellor  Kent,  in  his  Commentaries  (vol.  i,  p.  26),  says:  'The 
high  seas  are  free  and  open  to  all  the  world,  and  the  laws  of  every  State 
or  nation  have  there  a  full  and  perfect  operation  upon  the  persons  and 
property  of  the  citizens  or  subjects  of  such  a  State  or  nation.'  '  No 
nation  has  any  right  or  jurisdiction  at  sea,  except  it  be  over  the  persons 
of  its  subjects,  in  its  own  public  and  private  vessels;  and  so  far  terri- 
torial jurisdiction  may  be  conceded  as  preserved,  for  the  vessels  of  a 
nation  are  in  many  respects  considered  as  portions  of  its  territory,  and 
persons  on  board  are  protected  and  governed  by  the  law  of  the  country 
to  which  the  vessel  belongs.' 

"  Wharton  (Conflict  of  Laws,  §  356)  says:  'A  ship  in  the  open  sea  is 
regarded  by  the  law  of  nations  as  a  part  of  the  territory  whose  flag  such 
ship  carries.'  '  By  this  (he  says)  may  be  explained  several  cases  quoted 
as  establishing  the  lex  domicilii,  though  they  are  only  sustainable  on  the 
ground  that  the  ship  at  sea  is  part  of  the  territory  whose  flag  she  bears. 
.  .  .  In  respect  to  principle,  ships  at  sea,  and  the  property  in  them, 
must  be  viewed  as  part  of  the  country  to  which  they  belong.' 

"  The  modern  German  law  is  to  the  same  point.  Bluntschli,  in  his 
Moderne  Volkerrecht  (§  317),  says:  '  Ships  are  to  be  regarded  as  floating 
sections  of  the  land  to  which  they  nationally  belong,  and  whose  flag  they 
are  entitled  to  carry.' 

'•  Bischof,  in  his  Grundriss  des  positiven  internationalen  Seerechts 
(Graz,  i868;  cited  in  Wharton's  Conflict  of  Laws,  §  356,  n.),  says: 
*  Every  State  is  free  on  the  seas,  so  that  its  ships  are  to  be  regarded  as 


192  THE    MODERN    LAW    OF   CARRIERS. 

It  will  be  obsen-ed  that  none  of  the  rules  already  stated, 
except  the  last,  attempts  to  solve  the  difficulty  previously 
suggested,  and  this  rule  only  applies  to  maritime  con- 
tracts. 

V.  A  fifth  rule  which  has  much  support  in  authority 
may  be  thus  stated  : 

The  manner  in  which  the  contract  is  to  be  performed, 
in  all  particulars  for  which  it  does  not  expressly  provide, 
is  to  be  determined  by  the  laws  of  the  several  States  in 
which  it  is  to  be  performed,  so  that  the  law  of  each  State 
shall  regulate  the  performance  and  the  consequences  of  a 
breach  committed  in  that  State.^ 

floating  sections  of  its  country,  territoria  clausa  ;  la  continuation  ou  la 
prorogation  chi  territoire,  and  those  on  board  such  ships  in  foreign 
waters  are  under  their  laws  and  protection.  This  even  applies  to  chil- 
dren born  to  subjects  on  such  ships.' " 

The  English  cases  are  to  the  same  effect. 

In  Lloyd  ?'.  Guibert,  L.  R.  i  Q.  B.  115,  127;  6  Best  &  Smith,  120, 
139  (i'^'65),  the  court  said:  "For  all  purposes  of  jurisdiction,  criminal 
or  civil,  with  respect  to  all  persons,  things  and  transactions  on  board, 
she  was,  as  it  were,  a  floating  island,  over  which  France  had  as  abso- 
lute, and,  for  all  purposes  of  peace,  as  exclusive  a  sovereignty,  as  over 
her  dominions  by  land." 

The  same  rule  was  applied  to  the  case  of  a  child  born  on  a  British 
ship.  Marshall  v.  Murgatroyd,  L.  R.  6  Q.  B.  31  (1S70).  To  the  same 
effect  are  Vattel  Law  of  Nations,  book  I,  chap.  19,  sect.  216;  Wheaton 
Int.  Law,  sect.  106. 

^  The  rule  thus  stated  found  its  first  application  to  the  law  of  bills 
and  notes.  These  are  often  made  or  accepted  in  one  place  and  endorsed 
in  another,  and  the  uniform  rule  is  that  the  validity  and  effect  of  the 
several  contracts  of  acceptance  and  endorsement,  are  to  be  determined 
by  the  law  of  the  respective  places  where  each  is  to  be  performed. 

In  other  words,  wherever  the  contract  either  of  the  acceptor  or  en- 
dorser is  to  be  performed,  the  law  of  that  place  is  the  measure  of  his  duty 
and  liability.  Robinson?;.  Bland,  2  Burr.  1077  (1760);  Hibernia  Nat.  Bank 
V.  Lacombe,  84  N.  Y.  367  (1881);  Everett  v.  Vendryes,  19  N.  Y.  436 
(1859);  Rothschild  V.  Currie,  i  Qu.  B.  43  (1841);  Cooper  v.  Earl  of 
Waldegrave,  2  Beav.  282  (1840);  Boyce  v.  Edwards,  4  Peters,  11 1 
(1830). 

The  same  rule  has  been  frequently  applied  to  carrier's  contracts 
made  in  one  place  to  be  performed  in  several  jurisdictions  In  such 
cases  it  has  been  held  that:  "If  a  contract  is  to  be  performed  partly  in 
one  country  and  partly  in  another  countrv,  it  admits  of  a  double  aspect, 
nay,  it  has  a  double  operation,  and  is,  as  to  the  particular  parts,  to  be 
interpreted  distinctively;  that  is  according  to  the  laws  of  the  country 


LAW  PLACES  OF  PERFORMANCES.  1 93 

It  has,  however,  been  held  that  any  limitation  placed 
by  the  law  of  a  particular  State  upon  the  extent  of  the  re- 
covery for  a  breach  of  such  a  contract,  or  for  a  tort  com- 
mitted in  violation  of  it,  is  not  applicable  in  a  suit  brought 
in  another  State,  if  the  contract  was  made  in  the  latter 
State  and  the  principal  portion  of  the  performance  was  to 
be  within  that  State,  although  the  tort  was  committed  in 
the  State  which  enacted  the  statute.^ 

It  is  not  easy  to  reconcile  the  decision  in  the  Dyke 
case  with  those  previously  stated  except  on  the  ground 
that  such  statutes  affect  only  the  remedy  and  are  therefore 
a  part  of  the  lex  fori. 

In  a  subsequent  case,  however,^  where  a  statute  of 
Pennsylvania,  limiting  to  the  amount  of  $300  the  right  of 
a  passenger  to  recover  for  the  loss  of  baggage,  was  under 
consideration  by  the  New  York  Court  of  Appeals,  this 
distinction  was  not  alluded  to.     The  contract  there  was 

where  the  particular  parts  are  to  be  performed  or  executed."  Pope  v. 
Nickerson,  3  Story  C  C  465,  484  (1844).  In  Barter  v.  Wheeler,  49  N. 
H.  9  (1869),  a  contract  was  made  in  one  State,  to  be  performed  partly 
there,  partly  on  the  Great  Lakes,  partly  in  New  York,  and  partly  else- 
where. Court  held  that  defendant's  liability  for  a  loss  occurring  in 
New  York  was  governed  by  the  laws  of  that  State.  At  page  29  the 
court  says:  "  The  original  contract  was  made  at  Toledo,  Ohio,  but  was 
to  be  performed  partly  in  New  York,  and  the  loss  was  altogether  in  that 
State.  If  the  contract  was  to  have  been  performed  wholly  in  New  York, 
it  is  clear  that  it  would  be  governed  by  the  laws  of  that  State;  . 
and  if  to  be  executed  partially  in  New  York,  we  perceive  no  reason  why 
in  respect  to  that  part,  the  law  of  that  State  should  not  govern,  and  such 
is  the  doctrine  laid  down  in  Story  on  Contracts,  §  655,  where  it  is  said 
that  if  a  contract  is  to  be  performed  partly  in  one  country  and  partly  in 
another  country,  it  has  a  double  operation,  and  each  portion  is  to  be  in- 
terpreted according  to  the  laws  of  the  country  where  it  is  to  be  per- 
formed, and  it  is  said  that  the  rule  applies  to  a  bill  of  lading  of  goods, 
some  of  which  are  to  be  delivered  at  one  port,  and  some  at  another,  in 
different  countries."  Gray  z^.  Jackson,  51  N.  H.  9,  39;  s.  c.  12  Am. 
Rep.  I  (1871);  Pomeroy  v.  Ainsworth,  22  Barb.  118,  128(1856).  In  the 
last  case  the  court  say  :  ''  If  a  contract  is  to  be  performed  partly  in  one 
country  and  partly  in  another,  each  portion  is  to  be  interpreted  accord- 
ing to  the  laws  of  the  country  where  it  is  to  be  performed." 

^  Dyke  v.  Erie  R.  Co.,  45  N.  Y.  113  (187 1). 

2  Curtis  V.  Del.,  Lack.  &  W.  R.  R.,  74  N.  Y.  116  (1878). 
13 


194        THE  MODERN  LAW  OF  CARRIERS. 

made  iu  Pennsylvania,  to  transport  a  passenger  and  his 
baggage  from  that  State  through  New  Jersey  to  New  York. 
The  loss  occurred  in  New  York,  and  it  was  held  that  the 
right  of  action  and  the  measure  of  damages  must  be  de- 
termined by  the  law  of  New  York,  because  delivery  was  to 
be  made  there  and  the  contract  was  held  to  be  made  with 
reference  to  the  law  of  that  State.^ 

VI.  It  has  been  frequently  held  that  liability  for  a  tort 
is  to  be  determined  by  the  law  of  the  place  where  the  tort 
was  committed.^ 

This  question  has  arisen  most  frequently  in  actions  for 
injuries  causing  death.  It  is  well  settled  that  if  the  law 
of  the  place  where  the  tort  was  committed  does  not  give  a 
right  of  action,  no  action  is  sustainable.^ 

Having  thus  stated  the  general  rules  which  may  guide 


*  Everett  z'.  Vendryes,  19  N.  Y.  436  (1859);  Hibernia  National 
Bank  v.  Lacombe,  84  N.  Y.  367  (1881).  In  both  the  Dyke  and  the  Cur- 
tis cases,  it  is  to  be  observed  that  the  carrier  sought  the  benefit  of  stat- 
utes limiting  his  liability  in  case  of  loss.  In  the  Dyke  case  the  negligent 
act  complained  of  was  committed  in  Pennsylvania.  The  contract  was 
made  in  the  State  of  New  York  to  carry  a  passenger  through  that  State, 
Pennsylvania  and  New  Jersey  to  New  York  city.  The  carrier  was  held 
not  entitled  to  the  benefit  of  the  limit  of  liability  fixed  by  the  Pennsyl- 
vania statute. 

2  Davies  v.  New  York  &  N.  E.  R.  R.,  143  Mass.  301  (1887);  Illinois 
Central  R.  R.  v.  Crudup,  63  Miss.  291  (1885);  see  Re  Missouri  S.  S.  Co. 
58  Law  Times  Rep.  N.  S.  377  (1888);  affi'd  Weekly  Notes,  Notes  of 
Cases,  May  11,  1889,  p.  90,  in  which  the  liability  for  negligence  was  de- 
termined by  the  law  of  the  place  where  the  tort  was  committed.  But 
the  case  was  decided  on  the  ground  of  contract. 

The  decision  in  the  Dyke  case  was  otherwise,  as  has  been  shown. 

In  Thommasen  v.  Whitwill,  12  Fed.  Rep.  891  (1882);  affi'd  sub  mm. 
Thommessen  v.  Whitwill,  118  U.  S.  520  (1886);  where  two  colliding  ves- 
sels were  of  different  nationalities  and  no  foreign  law  was  proved,  it  was 
held  that  the  rights  of  the  parties  would  be  determined  by  the  law  of 
the  forum. 

'  The  Harrisburg,  119  U.  S.  199  (i886);  Ins.  Co.  v.  Brame,  95  U. 
S.  754  (1877);  Dennick  v.  R.  R.  Co.  103  U.  S.  11  (1880).  In  this  latter 
case  the  court  say:  "  It  is  indeed  a  right  dependent  solely  on  the  stat- 
ute  of  the  State."  In  the  Scotia,  14  Wall.  170  (187 1),  this  rule  was  applied 
to  the  case  of  a  collision  occurring  on  the  high  seas. 


LAW  PLACE  WHERE  TORT  COMMITTED.  1 95 

US  in  determining  the  main  question,  we  proceed  to  consider 
the  question  itself. 

It  is  sometimes  said  that  the  enforcement  bygone  coun- 
try of  the  laws  of  another  is  purely  matter  of  comity.  In 
one  sense  this  is  true.  But  the  comity,  by  which  the  courts 
of  one  State  respect  the  rights  acquired  under  the  laws  of 
another,  is  so  universal  and  well  established  that  it  has 
the  absolute  force  of  law.^  When,  for  example,  a  contract 
is  made  in  England,  certain  rights  arise  under  it.  These 
rights  are  a  species  of  property.  The  shipper's  right  to 
indemnity  under  certain  circumstances,  should  certainly 
be  sacred.  On  the  other  hand,  what  good  reason  can  be 
given  for  the  contention  that  the  carrier's  right  to  exemp- 
tion under  other  circumstances,  should  not  be  equally 
sacred.  If  the  laws  of  Great  Britain  allow  parties  dealing 
there  to  make  a  contract  for  such  exemption,  and  certain 
rights  of  property  arise  by  virtue  of  such  contract,  how  can 
the  courts  of  America  fail  to  respect  those  rights  if  they 
undertake  to  enforce  the  contract  at  all.  Confessedly  the 
contract  is  not  one  of  those  to  which  the  maxim :  Ex 
turpi  contractu  non  oritur  actio  applies.  The  contract  is 
a  legal  one.  The  courts  here  enforce  it.  To  divest  rights 
acquired  under  it  without  compensation  is  certainly  un- 
justifiable, and  no  case  has  yet  gone  to  the  length  of  say- 
ing that  an  express  contract  for  such  exemption,  which  is 
lawful  in  the  State  in  which  it  is  made,  will  not  be  recog- 
nized in  other  States  or  countries. 

The  decisions  in  the  Dyke  and  Curtis  cases  already 


1  Pritchard  v.  Norton,  106  U.  S.  124  (1882).  At  p.  132,  the  court 
say:  "  Hence  it  is  that  a  vested  right  of  action  is  property  in  the  same 
sense  in  which  tangible  things  are  property,  and  is  equally  protected 
against  arbitrary  interference.  Whether  it  springs  from  contract  or  from 
the  principles  of  the  common  law,  it  is  not  competent  for  the  legislature 
to  take  it  away.  A  vested  right  to  an  existing  defense  is  equally  pro- 
tected, saving  only  those  which  are  based  on  informalities  not  affecting 
substantial  rights,  which  do  not  touch  the  substance  of  the  contract  and 
are  not  based  on  equity  and  justice." 


196         THE  MODERN  LAW  OF  CARRIERS. 

cited  did  not  go  to  this  length.  The  latter  was  placed  by 
the  court  partly  on  the  ground  that  the  contract  made  no 
mention  of  exemption  or  limitation,  and  that  the  parties 
contracted  with  reference  to  the  laws  of  New  York  and  not 
with  reference  to  the  statute  of  Pennsylvania.  The  reason 
thus  stated  could,  however,  have  no  application  to  a  case 
where  the  contract  expressly  provides  for  exemption  or 
limitation  of  liability.  It  can  hardly  be  supposed  that  the 
parties  would  make  a  contract  which  they  thought  at  the 
time  was  invalid,  or  that  they  agreed,  by  implication  or 
otherwise,  to  import  into  the  contract  the  laws  of  a  country 
other  than  that  where  it  was  made,  which  should  annul  a 
part  of  their  own  express  agreement.^ 

1  In  Peninsula  O.  S.  N.  Co.  v.  Shand,  3  Moore,  P.  C  N.  S.  272,  292 
(1865),  the  court  say  :  "  Was  it  intended  that  the  stipulation,  in  case  of  an 
alleged  breach  of  contract,  should  be  construed  by  the  rules  of  the  English 
law,  which  would  give  some  effect  to  it,  or  by  those  of  the  French  or  any 
other  law,  according  to  which  it  would  have  none,  but  be  treated  as  a 
merely  fruitless  attempt  to  evade  a  responsibility  inseparably  fixed  upon 
the  appellants  as  carriers  ?  The  question  appears  to  their  Lordships  to 
admit  of  one  answer  only ;  but  if  they  take  the  respondent  so  to  have 
understood  the  intention  of  the  appellants,  they  must  take  him  to  have 
adopted  the  same  intention ;  it  would  be  to  impute  want  of  good  faiih 
on  his  part  to  suppose  that  with  that  knowledge  he  yet  intended  to  en- 
ter into  a  contract  wholly  different  on  so  important  an  article ;  he  could 
not  have  done  this  if  the  intention  had  been  expressed,  and  there  is  no 
difference  as  to  effect  between  that  which  is  expressed  in  terms,  and 
that  which  is  implied  and  clearly  understood."  Re  Missouri  S.  S.  Co., 
58  Law  Times  (N.  S.),  377  (1888);  s.  c  37  Albany  L.  J.  518;  affirmed 
in  Court  of  Appeals,  Weekly  Notes,  Notes  of  Cases,  May  11,  1889,  p. 
90.  The  same  considerations  have  led  American  courts  to  uphold  the 
validity  of  similar  commercial  contracts.  "  Where  the  contract  is  not  to 
be  performed  in  any  one  State  there  is  difficulty.  If  from  all  the  circum- 
stances it  is  reasonable  to  suppose  the  parties  had  in  view  the  law  of  the 
place  of  contract,  that  must  prevail.  But  where  there  are  no  circum- 
stances the  safest  rule  is  that  which  upholds  the  contract."  Ryan  v. 
Missouri,  Kansas  &  T.  R.  Co.,  65  Texas,  13  (1885);  s.  p.,  Western  &  A. 
R.  R.  V.  Exposition  Cotton  Mills  (Geo.),  7  S.  E.  Rep.  916  (1888);  Bell 
V.  Packard,  69  Me.  105  (1879);  Milliken  v.  Pratt,  125  Mass.  374  (1878). 
The  general  rule  on  this  subject  is  admirably  stated  in  Pritchard  v.  Nor- 
ton, 106  U.  S.  124  (1882).  At  p.  137,  the  court  say:  "' The  parties 
cannot  be  presumed  to  have  contemplated  a  law  which  would  defeat 
their  engagements.'  4  (Phillimore)  Int.  Law,  sect,  dcliv,  pp.  470,471. 
This  rule,  if  universally  applicable,  which  perhaps  it  is  not,  though 


PRESUMPTION   OF   VALIDITY   CONTRACT.  1 97 

But  the  recent  decision  of  the  Supreme  Court  of  the 
United  States  in  The  Montana/  holds  distinctly  that  there 
is  no  presumption  that  bills  of  lading,  made  in  the  United 
States  and  issued  by  a  British  corporation  to  American 
citizens  for  transportation  from  New  York  to  Liverpool, 
are  issued  or  accepted  with  reference  to  the  English  law. 
It  did  not  appear  on  the  face  of  the  bills  of  lading  that  the 
corporation  or  the  ship  were  British.  It  was  consequently 
held  that  the  corporation  was  liable  to  the  shipper  for  a 
loss  of  cargo,  caused  by  the  negligence  of  the  master  of  the 
steamer,  committed  on  the  Irish  sea,  which  resulted  in  a 
shipwreck  on  the  British  coast. 

It  will  be  perceived  that  this  case  does  not  determine 

founded  on  the  maxim  ut  res  magis  valeat  quam  pereaf,  would  be  deci- 
sive of  the  present  controversy,  as  conclusive  of  the  question  of  the  ap- 
plication of  the  law  of  Louisiana,  by  which  alone  the  undertaking  of  the 
obligor  can  be  upheld.  At  all  events,  it  is  a  circumstance,  highly  per- 
suasive in  its  character,  of  the  presumed  intention  of  the  parties,  and  en- 
titled to  prevail,  unless  controlled  by  more  express  and  positive  proofs 
of  a  contrary  intent." 

The  Montana  is  almost  the  only  case  in  which  the  court  has  pre- 
sumed that  a  contract  was  made  with  reference  to  a  law  by  which  the 
contract  was  void. 

*  Reported  sub  nom.  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co., 
129  U.  S.  397  (1889).  At  p.  459,  the  court  say:  "The  facts  that  the 
goods  are  to  be  delivered  at  Liverpool,  and  the  freight  and  primage  there- 
for payable  there  in  sterling  currency,  do  not  make  the  contract  an  En- 
glish contract,  or  refer  to  the  English  law  the  question  of  the  liability  of 
the  carrier  for  the  negligence  of  the  master  and  crew  in  the  course  of 
the  voyage."  To  the  same  effect  was  the  language  of  the  Circuit  Court; 
S.  c.  22  Fed.  Rep.  715,  728  (1884).  The  whole  opinion  of  the  court  im- 
plies that  if  it  had  appeared  as  a  fact  that  the  contracting  parties  looked 
to  the  law  of  England  as  governing  the  validity  of  the  contract,  it 
would  have  been  enforced.  The  court  add,  at  p.  462:  "  The  present 
case  does  not  require  us  to  determine  what  effect  the  courts  of  the 
United  States  should  give  to  this  contract  if  it  had  expressly  provided 
that  any  question  arising  under  it  should  be  governed  by  the  law  of 
England." 

This  should  be  compared  with  the  language  of  the  same  court  in 
Watts  V.  Camors,  115  U.  S.  353  (1885).  At  p.  362,  the  court  say: 
"Americans  and  Englishmen,  entering  into  a  charter  party  of  an  En- 
glish ship  for  an  ocean  voyage,  must  be  presumed  to  look  to  the  general 
maritime  law  of  the  two  countries,  and  not  to  the  local  law  of  the  State  in 
which  the  contract  is  signed." 


198  THE   MODERN   LAW   OF   CARRIERS. 

the  question  as  to  wHetlier  a  court  in  this  country  would 
recognize  as  valid  a  contract  for  such  exemption,  which  was 
valid  in  the  place  where  the  contract  was  made.  In  so  far 
as  it  goes,  The  Montana  would  seem  to  be  an  authority  the 
other  way,  for  it  distinctly  applied  to  the  contract  under 
consideration  the  law  of  the  place  where  the  contract  was 
made.  If  this  be  operative  to  invalidate  a  contract  which 
would  be  valid  by  the  law  of  the  place  where  the  perform- 
ance was  to  be  completed,  it  would  seem  equally  clear  that 
it  should  be  operative  to  give  validity  to  a  contract,  valid 
in  the  place  where  it  was  made,  but  invalid  by  the  law  of 
the  place  where  the  performance  is  to  be  completed.^ 

The  authority  of  the  cases  previously  cited  ^  to  sup- 
port the  proposition  that  a  contract  is  presumed  to  be 
made  with  reference  to  the  law  of  the  place  of  perform- 
ance, must  be  considered  as  seriously  impaired  by  The 
Montana.  The  question  naturally  arises:  by  what  evi- 
dence can  it  be  shown  that  a  particular  contract  was  made 
with  reference  to  the  law  of  a  foreign  country?  This  can 
be  shown  in  several  ways : 

1.  By  a  positive  statement  in  the  contract  that  it  is 
made  with  reference  to  the  law  of  a  particular  country.^ 

2.  By  proof  of  the  extrinsic  facts  in  reference  to  which 
the  contract  was  made.^ 

*  In  Stevens  v.  Navigazione  Gen.  It.,  39  Fed.  Rep.  562  (1889),  the 
court  assumed  the  validity  of  a  clause  in  a  bill  of  lading,  issued  and  ac- 
cepted in  Shanghai,  by  the  terms  of  which  the  carrier  was  exempted 
from  liability  for  loss  caused  by  the  negligence  of  his  servants.  But  the 
point  was  not  definitely  decided. 

2  Ante,  pp.  186,  187. 

^  Such  a  clause  in  a  ''live-stock  freight  contract"  was  held  valid  in 
The  Oranmore,  24  Fed.  Rep.  922  (1885).  The  clause  in  that  case  read 
as  follows:  "Any  questions  arising  under  this  contract  or  the  bill  of  lad- 
ing, against  the  steamer  or  her  owners,  shall  be  determined  by  English 
law  in  England." 

*  I  Greenl.  Evid.,  §§  288,  289;  Brick  v.  Brick,  98  U.  S.  514  (1878); 
Bank  v.  Kennedy,  17  Wall.  19  (1872);  Bradley  v.  Wash.,  A.  &  G.  Co., 
13  Peters,  89  (1839);  Moore  v.  Pitts,  53  N.  Y.  85,  90  (1873);    Phoenix 


RULE  OF  DECISION  AS  TO  STATUTE  LAW.  1 99 

3.  By  proof  of  a  custom  or  usage  universally  adopted 
by  the  mutual  agreement  of  shippers  and  carriers  of  the 
port  in  which  the  contract  was  made.  Such  proof  would 
be  admissible,  not  to  subvert  a  rule  of  law,  but  to  show 
what  law  it  was  with  reference  to  which  the  parties  con- 
tracted.^ 

One  other  point  relating  to  this  subject  requires  con- 
sideration. The  question  often  arises :  how  is  the  law  of 
any  particular  State  to  be  determined  ?  This  question  has 
been  most  frequently  discussed  in  the  Federal  Courts,  and 
many  of  their  decisions  on  this  subject  are  referred  to  in 
the  first  chapter.  It  is  sufficient  for  our  present  purpose 
to  briefly  state  the  conclusions  to  be  drawn  from  these  au- 
thorities.    They  hold: 

I .  The  statutory  law  of  any  particular  State  will  be 
enforced  in  the  Federal  Courts  and  the  courts  of  the  other 
States.  In  construing  such  statute,  those  courts  will  be 
guided  by  the  construction  put  upon  such  statute  by  the 
highest  tribunals  of  the  State  under  whose  authority  the 
statute  was  enacted.^ 


Ins.  Co.  V.  Continental  Ins.  Co.,  87  N.  Y.  400  (1882);  Chartered  Merc. 
Bk.  of  India  v.  Netherlands-India  S.  N.  Co.,  10  Qu.  B.  Div.  521  (1883). 

^  Bliven  v.  New  England  Screw  Co.,  23  How.  420  (1859).  At  p.  431 
the  court  say:  "Customary  rights  and  incidents,  universally  attaching 
to  the  subject-matter  of  the  contract  in  the  place  where  it  was  made,  are 
impliedly  annexed  to  the  language  and  terms  of  the  contract,  unless  the 
custom  is  particularly  and  expressly  excluded  Parol  evidence  of  cus- 
tom, consequently,  is  generally  admissible  to  enable  the  court  to  arrive 
at  the  real  meaning  of  the  parties,  who  are  naturally  presumed  to  have 
contracted  in  conformity  with  the  known  and  established  usage."  To 
the  same  effect  is  Fabbri  v.  Kalbfleisch,  52  N.  Y.  28  (1873). 

So  it  is  well  settled  with  reference  to  bills  of  lading,  that  the  custom 
or  usage  to  carry  particular  articles  on  deck  may  be  shown,  although 
parol  evidence  of  consent  in  the  particular  case  is  inadmissible.  The 
Delaware,  14  Wall.  579  (1871). 

2  Elmendnrf  v.  Taylor,  loWheat.  152, 160  (1825).  In  Shelby  v.  Guy,  11 
Wheat.  367  (1826),  the  court  say:  '*  That  the  statute  laws  of  the  States 
must  furnish  the  rule  of  decision  to  this  court,  as  far  as  they  comport 
with  the  Constitution  of  the  United  States,  in  all  cases  arising  within 
the  respective  States,  is  a  position  that  no  one  doubts.     Nor  is  it  ques- 


200  THE   MODERN   LAW   OF   CARRIERS. 

2.  In  questions  of  the  unwritten  commercial  law  tlie 
Federal  Courts  have  refused  to  follow  implicitly  the  de- 
cisions of  the  State  courts,  and  hold  distinctly  that  there 
is  a  general  commercial  law  of  the  United  States,  of  which 
any  local  decision  is  but  the  evidence,  and  that  the  Fed- 
eral Courts  will  not  follow  such  local  decision  if  they  are 
satisfied  that  it  is  wrong.  Numerous  State  courts  have 
followed  the  rule  thus  laid  down,  and  have  asserted  the 
right  to  overrule  the  decision  of  the  courts  of  a  sister 

tionable  that  a  fixed  and  received  construction  of  their  respective  stat- 
ute laws  in  their  own  courts  makes,  in  fact,  a  part  of  the  statute  law  of 
the  country,  however  we  may  doubt  the  propriety  of  that  construction." 
Township  of  Elmwood  7'.  Marcy,  92  U.  S.  289  (1875);  Town  of  South 
Ottawa  V.  Perkins,  94  U.  S.  260,  267  (1876);  Peik  z>.  Chicago  &  N.  W. 
R.  Co.,  94  U.  S-  164  (1876);  County  of  Leavenworth  v.  Barnes,  94  U. 
S.  70  (1876);  Adams  v.  Nashville,  95  U.  S.  19  (1877);  Fairfield  z/. 
County  of  Gallatin,  100  U.  S.  47  (1879). 

The  State  courts,  in  like  manner,  in  deciding  questions  arising  under 
the  statutes  of  another  State,  adopt  the  construction  put  upon  them  by 
the  courts  of  that  State.  Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N. 
Y.  48  (18S1);  Jessup  V.  Carnegie,  80  N.  Y.  441  (1880);  Crum  v.  Bliss, 
47  Conn.  592  {1880);  Russell  v.  Madden,  95  111.  485  (1880).  An  im- 
portant exception  has  been  made  to  the  rule  stated  in  the  text.  The 
Federal  Courts  have  held,  where  contracts  have  been  made  or  vested 
rights  acquired  upon  the  faith  of  a  construction  given  to  the  Constitu- 
tion or  statute  of  a  State  by  its  highest  courts,  that  the  Federal  Courts 
will  enforce  such  contracts  and  protect  such  rights  although  a  different 
construction  should  subsequently  be  given  by  the  local  courts.  Gelpcke 
v.  City  of  Dubuque,  i  Wall.  175,  206  (1863);  Havemeyer  7>.  Iowa 
County,  3  Wall.  294  (1865);  Olcott  v.  The  Supervisors  of  Fond  du  Lac, 
16  Wall.  678  (1872). 

In  Harris  v.  Jex,  55  N.  Y.  421  (1874),  the  Court  of  Appeals  laid 
down  a  similar  rule  in  regard  to  transactions  had  upon  the  faith  of  a 
decision  of  the  U.  S.  Supreme  Court.  In  that  case  a  tender  in  United 
States  currency  was  made  after  the  first  decision  of  the  Supreme  Court 
in  the  Legal  Tender  cases.  Hepburn  v.  Griswold,  8  Wallace,  603 
(1869).  This  tender  was  refused,  the  mortgagee  to  whom  it  was  made 
claiming,  on  the  authority  of  the  decision  just  mentioned,  that  the 
tender  must  be  made  in  gold.  The  Court  of  Appeals  held  that  while 
the  decision  was  in  force,  and  unreversed,  the  mortgagee  to  whom  the 
tender  was  made  had  a  right  to  refuse  it,  and  that  the  lien  of  the  mort- 
gage was  not  destroyed  by  such  refusal. 

This  case  has  gone  as  far  as  any  in  recognizing  the  fact  that  a 
judicial  decision  is  not  only  evidence  of  the  law,  but  does  actually  make 
the  law  in  all  places  subject  to  the  authority  of  the  court  rendering  the 
decision. 


RULE   OF   DECISION   AS   TO   COMMERCIAL   LAW.       20I 

State  as  to  the  commercial  law,  even  though  the  transac- 
tion under  consideration  took  place  partly  in  that  State/ 

1  In  Faulkner  v.  Hart,  82  N.  Y.  413  (1880),  a  contract  of  affreight- 
ment was  made  in  New  York  for  the  transportation  of  goods  from  that 
city  to  Boston,  and  for  their  deUvery  to  the  consignee  in  Boston.  He 
demanded  the  goods,  after  their  arrival,  from  the  carrier,  in  whose  cus- 
tody they  were;  but  it  was  inconvenient  for  the  carrier  to  make  delivery 
at  that  time,  and  delivery  was  not  made.  Subsequently,  and  before  they 
were  removed,  they  were  consumed  by  fire  while  in  the  carrier's  ware- 
house, and  without  fault  on  his  part.  The  Supreme  Court  of  Massa- 
chusetts had  held  that  under  such  circumstances  the  carrier  was  not  li- 
able. Rice  V.  Hart,  118  Mass.  201  (1875).  The  Court  of  Appeals  held 
that  he  was.  It  must  be  remembered,  however,  that  in  this  case  the 
contract  was  made  in  New  York,  and  was  an  express  contract  for  deliv- 
ery to  the  consignee.  The  court  say:  "That  the  court  in  Massachu- 
setts had  decided  the  law  contrary  to  what  it  was  is  not  controlling,  for 
it  may  be  assumed,  even  if  the  parties  had  knowledge  of  the  decision, 
that  they  knew  it  was  contrary  to  the  current  of  authority  in  similar 
cases,  and  contracted  having  in  view  the  law  as  it  actually  existed. 
Like  an  unconstitutional  law,  void  of  itself,  the  decision  was  not  the 
law,  and  is  not  to  be  regarded  as  authority  for  that  reason."  To  the 
same  effect  is  Franklin  v.  Twogood,  25  Iowa,  520  (1868). 

In  Georgia,  however,  it  was  held,  in  an  action  brought  there  for  per- 
sonal injuries  received  in  South  Carolina,  that  the  law  of  the  latter 
State  would  be  applied,  and,  there  being  no  South  Carolina  statute  regu- 
lating the  rights  of  parties  in  such  cases,  the  Georgia  courts,  in  a  liberal 
spirit  of  comity,  would  apply  the  common  law  in  South  Carolina  as  con- 
strued by  its  court  of  last  resort.  Atlanta  &  C  A.  L.  R.  Co.  v.  Tan- 
ner, 68  Georgia,  384  (1882).  See,  also,  Waters  v.  Cox,  2  Bradwell  (111. 
App.),  129  (1878);  Cubbedge  v.  Napier,  62  Ala.  518  (1878);  Ames  z^. 
McCamber,  124  Mass.  85  (1878);  Haywood  v.  Daves,  81  N.  C.  8  (1879); 
Cragin  v.  Lamkin,  7  Allen  (Mass.),  395  (1863);  Williams  v.  Carr,  80  N. 
C.  294  (1879);  Rorer  on  Interstate  Law,  p.  121;  Conflict  Between 
Federal  and  State  Decisions,  14  Am.  Law  Review,  211  (1880);  16  Am. 
Law  Review,  743  (1882). 

The  conflict  between  the  decisions  of  the  Federal  and  State  Courts 
on  questions  of  commercial  law  is  referred  to  by  Judge  Miller  in  Faulk- 
ner V.  Hart,  82  N.  Y.  413,  419  (1880):  "Any  other  rule  would  lead  to 
confusion  in  regard  to  a  principle  of  general  application,  for,  if  the  doc- 
trine of  the  Massachusetts  court  is  to  prevail,  the  right  of  the  aggrieved 
party  might  depend  upon  the  fact  whether  the  action  was  brought  in 
the  Federal  or  the  State  Court;  and  if  the  action  in  this  case  had  been 
brought  in  the  Circuit  Court  of  the  United  States  for  the  State  of  Massa- 
chusetts, the  plaintiffs  would  be  entitled  to  recover,  while  in  the  State 
court  a  different  result  would  prevail."  So  the  Supreme  Court  of  the 
United  States  has  held  that,  in  deciding  whether  a  contract  was  to  carry 
beyond  the  carrier's  line  or  merely  to  forward,  it  was  not  bound  by  the 
decisions  of  local  courts,  but  would  follow  its  own  judgment  as  to  the 
commercial  law  on  the  subject.  Myrick  v.  Mich.  Cent.  R.  R.,  107  U. 
S   102  (1882). 


202  THE   MODERN    LAW   OK   CARRIERS. 

As  the  logical  result  of  this  line  of  decisions  the  U.  S. 
Supreme  Court  held,  in  Railroad  Company  v.  Lockwood/ 
that  the  Federal  Courts  would  not  enforce  that  portion  of 
the  contract  of  a  carrier  which  stipulated  for  exemption 
from  liability  for  the  negligence  of  his  servants,  although 
the  contract  was  made  in  the  State  of  New  York,  and 
with  a  corporation  incorporated  under  the  law  of  that 
State,  and  such  contracts  are  held  by  the  courts  of  that 
State  to  be  valid.  It  thus  may  happen,  and  has  hap- 
pened, that  the  determination  of  the  rights  of  parties  de- 
pends, not  upon  the  length  of  the  Chancellor's  foot,  but 
upon  whether  the  suit  is  tried  on  the  north  or  south  side 
of  the  City  Hall  Park  in  the  city  of  New  York. 

Nevertheless,  this  apparent  anomaly  in  our  juris- 
prudence (which  has  existed  ever  since  Swift  v.  Tyson^ 
applied  to  the  transfer  in  New  York  of  negotiable  paper, 
a  rule  different  from  that  applied  by  the  courts  of  New 
York),  rests  upon  solid  foundations.  From  the  beginning 
of  our  national  existence  in  1789,  the  Supreme  Court  of 
the  United  States  has  endeavored  to  maintain  the  nation- 
al unity.  It  has  labored  assiduously  to  create  or  preserve 
uniformity  of  decision  in  all  commercial  questions  through- 
out the  Union.  In  this  endeavor  its  success  has  been  sig- 
nal, though  not  complete.  And  the  benefit  conferred  on 
the  nation  by  the  general  uniformity  of  its  system  of  com- 
mercial law  far  outweighs  the  evil  which  flows  from  the 
diversities  between  Federal  and  local  decisions,  to  which 
attention  has  been  called. 

But  the  reasons  which  led  the  Supreme  Court,  in  the 
Lockwood  case,  to  overrule  the  New  York  decisions  as  to 
the  validity  of  stipulations  for  exemption  from  liability 
for  negligence  in  the  transaction  of  interstate  commerce, 

'  17  Wallace,  357  (1873). 
^  I  Peters,  i  (1842). 


RULE   OF   DECISION   AS   TO   COMMERCIAL   LAW.      203 

have  no  application  to  contracts  for  transportation  of  pas- 
sengers and  freight  between  this  and  foreign  countries. 
The  jurisdiction  of  the  court  does  not  extend  to  these 
countries.  It  is  absurd  to  tell  an  Englishman  that  con- 
tracts for  exemption  for  negligence  are  void  by  the  com- 
mercial law  of  England,  when  the  House  of  Lords  has 
held  otherwise.  In  Faulkner  v.  Hart^  the  Court  of  Ap- 
peals could  truly  say  that  the  commercial  law  of  the 
United  States  was  one^  because  the  highest  court  in  the 
United  States  had  so  held.  The  Supreme  Court  of  Massa- 
chusetts had  the  opportunity,  in  Rice  v.  Hart,^  to  recon- 
sider its  previous  decision  on  the  subject,  and  put  itself 
in  line  with  the  general  current  of  authority  in  America 
and  England.  This  it  had,  unfortunately,  failed  to  do. 
But  still,  in  the  United  States  Circuit  Court  for  Massa- 
chusetts the  commercial  law  had  been  held  to  be  what  the 
New  York  court  declared.^ 

If,  however,  a  British  ship  should  be  libelled  in  New 
York  for  failure  to  deliver  merchandise  in  good  order  which 
had  been  delivered  to  it  in  Liverpool,  and  the  owner  should 
plead  his  British  bill  of  lading  as  a  defense  to  the  suit, 
no  court  in  this  country  could  say  that  any  British  court 
would  overrule  the  defense.  The  most  convenient  method 
of  determining  all  such  questions  is  to  apply  the  law  of  the 
flag.  This  can  readily  be  ascertained,  and  the  shipper — 
if  that  be  the  rule — can  ship  with  full  knowledge  of  his 
rights  and  those  of  the  carrier.  It  has  been  shown  ^  that 
this  rule  is  supported  by  many  authorities.  While  no  one 
can  affirm  that  it  will  ultimately  be  applied  by  the  Fed- 


1  82  N.  Y.  413  (1880). 
^  118  Mass.  201  (1875). 

'  Salmon  Falls  Manfg.  Co.  v.  Bark  Tangier,  i  Clifford,  396  (i860); 
Richardson  v.  Goddard,  23  How.  (U.  S.)  28  (1859). 
*  Ante,  pp.  188,  189. 


204  THE   MODERN   LAW   OF   CARRIERS. 

eral  Courts  to  this  class  of  cases  upon  carrier's  contracts, 
yet  for  the  sake  of  simplicity  and  uniformity  in  the  ad- 
ministration of  justice  it  is  very  much  to  be  hoped  that 
such  will  be  the  result,  at  least  in  cases  where  it  distinct- 
ly appears  that  such  was  the  agreement  of  the  parties. 

The  only  reasonable  alternative,  it  is  respectfully  sub- 
mitted, is  to  apply  the  fifth  rule  before  mentioned,  and  de- 
termine the  carrier  s  liability  by  the  law  of  the  place  where 
the  injury  to  the  passenger  or  the  cargo  is  committed.  In 
the  case  put  at  the  beginning  of  this  chapter,  of  a  con- 
tract made  in  Liverpool  for  transportation  to  Philadelphia, 
the  carrier's  liability  for  injuries  done  in  Great  Britain 
would  be  determined  by  English  law,  and  for  injuries  done 
in  Pennsylvania  by  the  law  of  that  State.  But  what  shall 
we  say,  in  such  case,  as  to  the  carrier's  liability  for  in- 
juries done  upon  the  high  seas?  What  law  but  the  law 
of  the  flag  could,  in  such  case,  be  constantly  applied? 
The  right  of  each  country  to  punish  crimes  committed 
upon  its  own  ships  is  universally  recognized.^ 

By  parity  of  reasoning,  should  not  the  law  of  the 
country  to  which  the  ship  belongs  extend  to  the  conse- 
quences of  civil  as  well  as  criminal  wrongs? 


^  Grotius,  de  Jure  Belli  et  Pads,  lib.  ii,  cap.  iii,  sect.  13;  Rutherforth's 
Institutes,  lib.  ii,  cap.  ix;  Vattel,  lib.  i,  cap.  xix,  sect.  216;  Wheaton's 
International  Law  (8th  ed.),  sect.  106;  i  Kent  Com.  26;  Regina  z;. 
Serva,  2  Car.  &  K.  53  (1845).  In  Regina  v.  Bjornsen,  i  Leigh  &  C 
545  (1865),  the  court  said:  "The  question  is  whether  an  English  court 
has  jurisdiction  to  try  a  foreigner  for  an  offense  committed  on  the  high 
seas  ?  If  the  ship  was  British,  so  as  to  be,  in  law,  a  part  of  the  British 
territory,  there  clearly  was  jurisdiction  ;  and  the  point,  therefore,  is  this: 
Was  the  ship  British,  or  not  ?  "  The  court  held  that  the  ship  was  not 
a  British  one,  and  that  they  consequently  had  no  jurisdiction.  U.  S.  v. 
Klintock,  5  Wheat.  144  (1820);  U.  S.  v.  Holmes,  5  Wheat.  412  (1820), 
where  the  court  says:  "In  Klintock's  case  it  was  laid  down  that,  to  ex- 
clude the  jurisdiction  of  the  courts  of  the  United  States,  in  cases  of 
murder  or  robbery  committed  on  the  high  seas,  the  vessel  in  which  the 
offender  is,  or  to  which  he  belongs,  must  be,  at  the  time,  in  fact  as  well 
as  in  right,  the  property  of  a  subject  of  a  foreign  State,  and,  in  virtue 
of  such  property,  subject,  at  that  time,  to  his  control." 


RULE   OF   DECISION   AS   TO   COMMERCIAL   LAW.      205 

It  is  hardly  within  the  province  of  a  text-book  to  dis- 
cuss this  subject  further.  It  is  hoped  that  enough  has 
been  said  to  aid,  as  far  as  it  lies  in  the  author's  power, 
counsel  and  courts  in  the  examination  and  decision  of  the 
question  propounded  at  the  beginning  of  this  chapter. 


CHAPTER  IX. 

CONTRIBUTORY   NEGLIGENCE   AND   FRAUD    OF   SHIPPER. 

The  rule  as  to  contributory  negligence,  so  familiar  in 
actions  brought  to  recover  damages  for  personal  injuries, 
has  found  many  curious  illustrations  in  actions  against 
carriers  upon  the  contract  to  transport  freight  or  passen- 
gers. 

/.  Failure  to  inform  carrier  of  value  or  character  of 
articles  shipped. — The  general  rule  is  well  settled  that  a 
shipper  of  freight  is  not  bound  to  disclose  to  the  carrier 
the  value,  or  valuable  character  of  goods  delivered  to  the 
latter  for  transportation,  but  that  if  the  carrier  desires  in- 
formation on  either  subject,  he  should  enquire.^ 

It  has  been  questioned  whether  this  rule  is  applicable 
to  the  case  of  a  trunk  or  other  package  delivered  by  a 
passenger  to  a  carrier  of  passengers  for  transportation. 
It  does  not  fall  within  the  scope  of  this  work  to  consider 
what  articles  accompanying  a  passenger  may  be  prop- 
erly termed  baggage.  But  assuming  that  the  articles  de- 
livered are  baggage,  the  question  has  arisen  whether  the 
passenger,  if  there  be  no  inquiry  by  the  carrier,  is  bound 

1  Baldwin  v.  Liverpool  &  G.  W.  S.  Co.,  74  N.  Y.  125  (1878);  Gorham 
Man.  Co.  v.  Fargo,  35  N.  Y.  Super.  Ct.  434  (1873);  Shelden  v.  Robin- 
son, 7  N.  H.  157  (1834);  Merchants'  Despatch  Trans.  Co.  v.  Bolles,  80 
111.  473  (1875);  Baldwin  v.  Collins,  9  Robinson  (Louisiana),  468  (1845); 
Levois  V.  Gale,  17  La-  Ann.  302  (1865);  Brown  v-  Camden  &  A.  R.  R., 
83  Penn.  St.  316  (1877);  Phillips  v.  Earle,  8  Pick.  182  (1829).  In  Mc- 
Cune  V.  B.,  C.  R.  &  N.  R.  R.  R.  Co.,  52  Iowa,  600  (1879),  it  was  held 
that  a  shipper  was  not  bound  to  inform  a  carrier  that  a  cow  shipped  by 
his  road  was  about  eight  months  gone  with  calf.  But  for  an  exception 
to  this  rule,  in  the  case  of  an  express  company  which  carries  letters,  see 
Hayes  v.  Wells,  23  Cal.  185  (1863);  post,  p.  207,  n.  2.  In  American 
Ex.  Co.  V.  Perkins,  42  111.  458  (1867),  it  was  held  that  the  shipper  was 
bound  to  disclose  the  fragile  nature  of  goods  delivered  to  the  carrier. 


FAILURE  TO   DISCLOSE   CONTENTS.  207 

to  disclose  to  him  the  fact  that  some  of  them  are  of  special 
value. 

The  Supreme  Court  of  the  United  States  has  held  that 
the  passenger  owes  the  carrier  no  such  duty,  and  affirmed 
a  judgment  recovered  against  a  carrier  for  $10,000,  the 
value  of  laces  and  articles  of  personal  adornment,  which 
were  placed  by  a  lady  in  her  trunk  and  lost  by  the  car- 
rier s  negligence.^ 

On  the  other  hand  it  was  held,  by  the  Supreme  Court 
of  Illinois,  that  the  rule  already  stated  as  to  common  car- 
riers of  freight  did  not  apply  to  carriers  of  passengers, 
and  that  the  passenger  was  bound  to  disclose  the  fact  of 
the  presence  in  his  trunk  of  articles  of  especial  value,  and 
if  he  did  not,  could  not  recover  for  their  loss  more  than 
the  apparent  value  of  a  trunk,  containing  baggage  such 
as  travelers  usually  carry .^ 


*  Railroad  Co.  v.  Fraloff,  100  U.  S.  24  (1879).  To  the  same  effect 
are  Hollister  v.  Nowlen,  19  Wend.  234  (1838);  Brooke  v.  Pickwick,  4 
Bing.  218  (1827).  In  the  last  case  gross  negligence  on  the  part  of  the 
carrier's  servants  was  shown.  See  Spooner  v.  Hannibal  &  St.  Jo.  R. 
R.,  23  Mo..App.  403  (1886). 

2  Mich.  Cent.  R.  R.  v.  Carrow,  73  111.  348  (1874).  The  court  say 
that  the  carrier  may  rely  upon  the  representation,  arising  by  implica- 
tion, that  a  trunk  contains  nothing  but  baggage.  In  this  case,  however, 
the  articles  in  question  were  clearly  merchandise,  and  part  of  the  pas- 
senger's stock  in  trade.  Cincinnati  &  C  A.  L.  R.  R.  v.  Marcus,  38  111. 
219  (1865). 

See  Orange  Co.  Bank  v.  Brown,  9  Wend.  85  (1832),  which  admits 
the  rule  before  stated,  but  holds  that  it  did  not  apply  to  a  case  where 
the  trunk  delivered  to  the  carrier  contained  li  1,000  in  bank  notes.  The 
decision  is  placed  chiefly  on  the  ground  that  such  a  sum  of  money  was 
not  baggage,  and  that  if  the  carrier  was  to  be  responsible  for  its  safe 
carriage,  he  was  entitled  to  extra  compensation;  but  the  court  say  that 
"the  conduct  of  the  agent  was  a  virtual  concealment  of  that  sum;  his 
representation  of  his  trunk  and  the  contents  as  baggage  was  not  a  fair 
one,  and  was  calculated  to  deceive  the  captain,  and  it  would  be  a  viola- 
tion of  first  principles  to  permit  the  plaintiffs  to  recover."  See  Weeks 
V.  N.  Y.,  N.  H.  &  H.  R.  R.,  72  N.  Y.  50  (1878). 

It  may  be  doubted  whether  a  notice,  printed  on  a  ticket  delivered  to 
a  passenger,  or  otherwise  brought  to  his  attention,  that  the  carrier 
would  not  be  liable  for  the  loss  of  baggage  to  more  than  a  specified 
sum,  would  not  make  it  the  duty  of  the  passenger  to  state  the  value  of 


2o8  THE   MODERN   LAW   OF   CARRIERS. 

Indeed,  tlie  Supreme  Court  of  Illinois  lias  lield  that  if 
the  appearance  of  a  package  delivered  to  a  carrier,  does 
not  indicate  that  it  contains  articles  of  value,  the  shipper 
is  bound  to  inform  the  carrier  of  its  real  value,  and  that 
his  omission  so  to  do  is  a  fraud  which  will  prevent  a  re- 
covery by  him,  in  case  of  loss,  for  more  than  the  apparent 
value  of  the  parcel.^ 

These  cases  in  Illinois,  however,  admit  that  under  such 
circumstances  the  carrier  would  be  subject  to  the  liability 
of  a  bailee  for  hire.  But  it  would  seem,  on  principle,  that 
fraud  on  the  part  of  the  shipper  should  be  a  complete  bar 
to  his  recovery.  This  question  was  very  much  discussed 
in  the  New  York  Court  of  Appeals,  in  Magnin  v.  Dins- 
more.  That  case  was  three  times  appealed.  The  goods 
delivered  to  the  carrier  were  watches.  A  printed  receipt 
limiting  the  carrier's  liability  to  fifty  dollars  was  given  to 
the  shipper.  It  was  held  in  the  New  York  Superior  Court, 
on  the  first  hearing,  that  this  clause  relieved  the  carrier 
from  liability  beyond  that  amount,  even  when  the  loss 
was  occasioned  by  his  negligence.  But  the  Court  of  Ap- 
peals held,  on  the  first  appeal,-'  that  if  the  contract  did  not 
in  express  language  provide  that  the  carrier  should  not 
be  liable  for  the  negligence  of  his  servants,  the  clause 
limiting  the  amount  for  which  a  recovery  could  be  had 
should  be  limited  to  the  case  of  loss  occurring  without 
fault  on  the  part  of  the  carrier. 

On  the  second  trial  it  was  shown  that  the  appearance 
of  the  package  did  not  indicate  the  value  of  the  contents. 


his  baggage  if  he  should  desire  to  iitiake  the  carrier  liable  for  more  than 
the  specified  amount.     See  ante^  p.  i8o;  post,  Chap.  X,  sect.  i. 

1  Oppenheimer  v.  U.  S.  Express  Co.,  69  111.  62  (1873).  ^^  that  case 
the  court  say  that  a  designed  suppression  of  the  value  of  the  goods  is 
unfair  conduct  on  the  part  of  the  shipper,  and  relieves  the  carrier  from 
his  liability  as  insurer.  Chicago  &  Aurora  R.  R.  v.  Thompson,  19  111. 
578  (1858);  Am.  Ex.  Co.  V.  Perkins,  42  111.  458  (1867). 

2  56  N.  Y.  168  (1874). 


FAILURE    TO   DISCLOSE    CONTENTS.  209 

The  court,  on  a  second  appeal,  held^  that,  under  such  cir- 
cumstances, the  omission  to  disclose  the  value  was  a  fraud 
on  the  shipper's  part,  even  though  no  artifice  was  em- 
ployed by  him,  and  that  he  could  recover  only  fifty  dol- 
lars. This  rule  was  adhered  to  on  a  third  appeal.^  It 
must  be  remembered,  however,  that  in  this  case  the  ship- 
per had  notice  that  the  carrier  intended  to  limit  its  liabil- 
ity unless  the  value  was  stated  by  him,  and  it  is  on  this 
ground  that  the  court  based  its  decision.*' 

In  the  absence  of  such  notice  it  is  not  perceived  why 
the  doctrine  of  the  cases  previously  stated  should  not  be 
adhered  to.  The  parties  deal  on  equal  terms.  One  should 
not  be  required  to  disclose  value,  unless  the  other  in  some 
way  gives  notice  that  disclosure  is  required. 

Of  course,  if  the  carrier  does  make  enquiry  as  to  the 
value  of  the  package,  or  the  character  of  the  contents, 


1  62  N.  Y.  35  (1875). 

2  70  N.  Y.  410  (1877). 

'  The  express  receipt  is  printed  in  full  in  the  report  in  56  N.  Y.  168 
(1874).  It  contained  the  following  clause:  "If  the  value  of  the  prop- 
erty above  described  is  not  stated  by  the  shipper,  the  holder  thereof 
will  not  demand  of  the  Adams  Express  Company  a  sum  exceeding  fifty 
dollars  for  the  loss."  See,  also,  Batson  v.  Donovan,  4  B.  &  Aid.  21 
(1820).  In  this  case  the  carrier  gave  notice  that  he  would  not  be  liable 
for  more  than  a  certain  value  on  any  one  parcel.  The  shipper,  knowing 
this  notice,  delivered  to  the  carrier  a  box  containing  bank  notes  and 
other  securities  to  the  value  of  over  £4,000.  The  box  had  no  external 
indication  of  the  value  of  its  contents,  and  no  information  respecting 
the  same  was  asked  or  given.  It  was  held  that,  under  the  circum- 
stances, the  shipper  was  bound  to  give  information  without  being  asked, 
and  that  the  carrier  was  not  liable  for  the  loss  of  the  box.  So  The 
Denmark,  27  Fed.  Rep.  141  (1886);  Gibbon  v.  Paynton,  4  Burr.  2298 
(1769). 

Green  v.  Boston  &  Lowell  R.  R.,  128  Mass.  221  (1880),  held  that  an 
express  notice  that  the  carrier  would  not  be  liable  for  over  $200,  unless 
upon  special  agreement,  was  valid,  and  the  shipper  could  not  recover 
more  than  that  amount.  At  the  same  time  it  was  held  that  another 
clause,  that  the  com|)any  would  not  be  liable  for  "specie,  drafts,  bank 
bills  and  other  articles  of  great  intrinsic  or  representative  value"  with- 
out disclosure,  did  not  apply  to  a  family  portrait. 


14 


2IO  THE   MODERN   LAW   OF   CARRIERS. 

and  is  not  informed  correctly  by  the  shipper,  the  carrier 
will  not  be  responsible  for  the  loss  of  the  package.^ 

This  view  would  seem  to  be  sustained  by  the  decisions 
that  if  a  traveler  delivers  a  trunk  to  a  carrier,  informs 
him  that  it  contains  merchandise,  and  pays  extra  compen- 
sation for  its  carriage,  he  can  recover  its  full  value,  al- 
though he  does  not  more  fully  disclose  the  character  of 
its  X!ontents.^ 

So  if  the  appearance  of  the  package  delivered  by  the 
passenger  indicates  that  it  contains  merchandise  and  not 
baggage,  the  carrier  has  the  right  to  demand  extra  com- 
pensation for  carrying  it,  and  is  liable  for  its  full  value 
should  it  be  lost.^ 

2.  Fraudulent  conceabnent  of  the  contents  of  a  package 
delivered  for  transportation. — If  the  shipper  use  any  arti- 
fice whatever  to  conceal  from  the  carrier  the  true  value  of 
the  contents  of  a  package  delivered  to  him  for  transporta- 
tion, the  shipper  cannot  recover  for  their  loss,  unless 
actual  negligence  or  a  conversion  by  the  carrier  be 
shown.* 

*  Phillips  V.  Earle,  8  Pick.  182  (1829);  Charleston  &  Savannah  R. 
Co.  V.  Moore,  80  Geo.  522;  s.  c.  5  S.  E.  Rep.  769  (1888). 

"^  Sloman  v.  Great  Western  R.  Co.,  67  N.  Y.  208  (1876);  Camden  & 
Amboy  R.  R.  v.  Baldauf,  16  Penn.  67  (185 1).  In  the  Sloman  case  the 
court  say:  "The  fact  that  the  baggage-master  charged  or  received  extra 
pay  for  their  carriage  [/'.  <?.,  of  the  trunks]  is  some  evidence  that  they 
were  not  regarded  as  ordinary  traveler's  baggage,  especially  as  the  de- 
fendant did  not  offer  any  explanation  of  what  the  charge  was  for.  From 
all  the  circumstances  the  jury  were,  we  think,  authorized  to  draw  the 
inference  that  the  baggage-master  understood  that  the  agent  was  travel- 
ing for  the  purpose  of  selling  goods,  and  that  these  trunks  contained  his 
wares;  that  he  was  not  entitled  to  have  them  carried  as  his  ordinary 
baggage,  and  therefore  the  extra  charge  was  made  and  they  were  car- 
ried as  freight."     Cf.  Hellman  v.  Holladay,  post^  page  212,  note  i. 

3  Butler  V.  Hudson  R.  R.  R.,  3  E.  D.  Smith  (N.  Y.),  571  (1854). 
And  see  Pfister  v.  Central  Pacific  R.  R.,  70  Cal.  170  (1886).  But  com- 
pare Crouch  V.  London  &  N.  W.  R.  Co.,  14  C  B.  255  (1854). 

The  mere  delivery  of  a  valise  to  a  baggage-master  is  a  representa- 
tion that  it  contains  nothing  but  personal  baggage.  If  it  contains  mer- 
chandise, the  passenger's  silence  is  held  to  be  a  fraud.  Blumenthal  v. 
Maine  Cent.  R.  R.,  79  Maine,  550(1887). 

*  Gibbon  v.  Paynton,  4  Burr.  2298  (1769).     In  this  case  the  artifice 


FRAUDULP:NT  concealment  of  contents.    211 

It  is  impossible  to  state  accurately  what  will  amount 
to  such  concealment.  Much  will  depend  upon  the  circum- 
stances of  the  case,  and  the  usage  of  business.  For  ex- 
ample: an  emigrant  delivered  to  a  carrier  a  common 
packing-box  containing  bedding  and  clothing.  In  the 
middle  the  owner  had  placed  some  gold.  The  Circuit 
Court  of  the  United  States  for  the  Northern  District  of 
Illinois  held  that  if  it  were  known  to  the  carrier  that 
emigrants  frequently  placed  valuables  in  boxes  of  that 
description,  the  use  of  such  a  box  was  not  a  concealment, 
though  ordinarily  it  might  be.^ 

On  the  other  hand  the  usage  of  business  is  not  con- 
trolling. An  express  company  had  in  its  main  office  two 
counters,  one  for  valuable  articles  and  one  for  ordinary 
goods.  A  small  parcel,  weighing  20  pounds,  done  up 
with  twine,  and  sealed,  was  delivered  at  the  latter  counter. 
It  contained  silver,  and  was  directed  to  a  well-known  deal- 
er in  silverware.  The  N.  Y.  Superior  Court  held  that  the 
delivery  at  the  wrong  counter  did  not,  under  the  circum- 
stances, amount  to  a  concealment  of  the  character  of  the 
goods. ''^ 


used  was  hiding  money  in  hay  in  an  old  nail  bag.  Phillips  v.  Earle,  8 
Pick.  (Mass  )  182  (1829);  Relf  v.  Rapp,  3  Watts  &  S.  (Penn.)  21  (1841). 
In  this  case  the  artifice  consisting  in  marking  a  box  "glass"  which 
really  contained  jewelry.  Magnin  v.  Dinsmore,  56  N.  Y.  168  (1874V, 
62  N.  Y.  35  (1875);  70  N.  Y.  410  (1877);  Warner  v.  Western  Trans.  Co., 
5  Robt.  (N.  Y.)  490  (1868);  Southern  Ex.  Co.  v.  Everett,  37  Georgia, 
688  (1868);  Crouch  v.  London  &  N.  W.  R.  Co.,  14  C.  B.  255  (1854); 
Chicago  &  Alton  R.  R.  v.  Shea,  66  111.  471  (1873);  Houston  &  T.  C.  R. 
R.  V.  Burke,  55  Texas,  323  (1881).  In  this  case  the  rule  stated  in  the 
text  was  applied,  notwithstanding  the  Texas  statute  (Rev.  Stat.,  art.  278) 
which  declares  invalid  any  stipulations  limiting  the  carrier's  liability. 

1  Kuter  V.  Mich.  Central  R.  R.,  i  Bissell,  35  (1853). 

'  Gorham  Man.  Co.  v.  Fargo,  35  N.  Y.  Super.  Ct.  434  (1873).  In 
this  case  the  weight  of  the  package  and  the  manner  in  which  it  was  put 
up  were  at  least  sufficient  to  put  the  carrier  on  enf|uiry  as  to  its  true 
character.  The  rule  on  this  subject  is  well  illustrated  by  a  California 
case.  For  many  years  after  the  settlement  of  the  California  coast,  the 
express  companies  afforded  a  better  service  to  the  public  than  the 
United  States  Mail,  and  consequently  carried  many  letters.    It  was  held 


212  THE    MODERN    LAW    OF   CARRIERS. 

Any  positive  misstatement  by  the  sliipper  as  to  the 
character  or  contents  of  the  package  delivered  to  the  car- 
rier, is  a  bar  to  an  action  to  recover  for  its  value,  unless 
gross  negligence  or  actual  conversion  be  shown. ^ 

Some  of  the  cases  on  this  subject  refer  to  the  proba- 
bility that  the  motive  of  the  shipper,  in  using  the  artifice 
or  deceit,  is  to  get  the  goods  carried  at  a  lower  rate  of 
freight.^ 

But  it  is  believed  that,  on  principle,  the  presence  or 
absence  of  such  a  motive  must  be  legally  unimportant. 
The  deception  or  concealment  relates  to  a  subject  mate- 
rial to  the  carrier's  employment.  He  may,  and  generally 
does,  provide  especial  safeguards  for  objects  of  especial 
value.     It  is  to  enable  him  to  use  these  that  he  desires  to 


that  the  company  was  not  liable  for  the  loss  of  bank-notes  enclosed  in 
a  letter,  unless  the  sender  stated  the  character  of  the  contents  of  the 
envelope  This  was  for  the  reason  that  the  character  of  the  package 
was  such  as  to  indicate  that  the  contents  had  little  or  no  pecuniary 
value,  and  its  use  was,  therefore,  a  deception  or  concealment.  Hayes  v. 
Wells,  23  Cal.  185  (1863). 

It  has  been  held  in  Louisiana  that  the  owners  of  a  steamboat,  which 
is  in  the  habit  of  carrying  money  for  compensation,  are  not  liable  for 
the  loss  of  a  package  of  money  handed  to  the  master  without  informing 
him  of  the  nature  of  the  contents  of  the  package.  In  this  case  no  charge 
was  made  for  the  carriage.  Mechanics'  &  Traders'  Bank  v.  Gordon,  5 
La.  Ann.  604  (1850). 

^  Gibbon  V.  Paynton,  4  Burr.  2298  (1769);  Phillips  v.  Earle,  8  Pick. 
(Mass.)  182  (1829);  Relf  v.  Rapp,  3  Watts  &  Serg.  (Penn.)  21  (1841); 
Levois  V.  Gale,  17  La.  Ann.  302  (1865);  The  Ionic,  5  Blatchf.  538 
(1867).  It  is  for  this  reason  that  a  clause  in  a  carrier's  contract,  that  it 
should  not  be  liable  for  the  loss  of  goods  untruly  or  incorrectly  de- 
scribed, was  held  reasonable  and  valid  in  Lewis  v.  Great  Western  R. 
Co.,  5  H.  &  N.  867;  s.  c.  29  L.  J.  (Excheq.)  425  (i860).  But  if,  not- 
withstanding deception  by  passenger,  the  carrier  m  any  way  learn  of  the 
extra  value,  and  charges  for  it.  he  is  liable  for  its  full  value.  Hellman 
V.  Holladay,  i  Woolw.  365  (1868). 

2  Southern  Ex.  Co.  v.  Everett.  37  Geo.  688  (1868).  In  Chicago  & 
Alton  R.  R.  V.  Shea,  66  111.  471  (1873),  the  court  say:  "Whilst  appel- 
lants are  willing  to  admit  the  law  is  well  settled  that  it  is  not  the  duty 
of  the  carrier  to  inquire  as  to  the  contents  of  packages  delivered  for 
shipment,  when  such  contents  are  not  known,  yet  it  is  not  less  a  fraud 
in  the  shipper  to  do  any  act  by  which  such  inquiry  is  avoided  or  pre- 
cluded." 


ERRORS    IN    DIRECTION.  213 

know  what  is  the  nature  of  the  article  delivered  to  him 
for  carriage. 

The  weight  which  has  sometimes  been  given  to  proof 
of  this  sort  has  led  the  St.  Louis  Court  of  Appeals  into  a 
decision  opposed  to  the  general  current  of  authorities, 
and  which  will,  it  is  believed,  hardly  be  followed  in  other 
States.  It  was  held  by  that  court,  in  Rice  v.  Indianapolis 
&  St.  Louis  R.  R.,^  that  the  only  effect  of  artifice  or  de- 
ception used  by  the  shipper  to  conceal  the  value  or  char- 
acter of  the  goods  shipped  was  to  entitle  the  carrier  to  re- 
cover the  full  freight  which  it  would  have  demanded  had 
it  known  the  facts  of  the  case,  and  that,  in  case  of  loss, 
this  amount  should  be  deducted  from  the  value  of  the 
goods ;  and  the  carrier  would  be  liable  for  the  balance. 

This  decision  seems  to  overlook  the  consideration  be- 
fore referred  to  respecting  the  safeguards  provided  by  the 
carrier,  and  may  possibly  yet  be  reconsidered  by  the 
learned  court  that  pronounced  it. 

J.  Errors  in  direction. — The  carrier  is  not  liable  for 
losses  caused  by  errors  in  direction.  For  example :  goods 
were  marked  by  the  shipper  in  New  York,  "  Kckley,  Iowa," 
by  mistake  for  Ackley,  and  were  carried  by  the  New  York 
carrier  and  its  connections  to  Chicago.  The  Iowa  line 
there  refused  to  receive  them.  They  were  deposited  in  a 
warehouse,  and  the  carrier  telegraphed  for  further  direc- 
tions. Before  these  were  received  the  goods  were  destroyed 
by  fire.  It  was  held  that  the  carrier  which  received  the 
goods  was  not  liable  for  the  loss.^     For  similar  reasons 

^  3  Missouri  App.  27  (1876).  It  was  held  by  the  same  court  that 
the  delivery  to  a  carrier  of  a  trunk  containing  merchandise,  with  the 
fraudulent  intent  to  avoid  payment  of  freight,  was  no  bar  to  the  ship- 
per's right  of  action  for  its  loss,  if  the  carrier  knew  that  it  contained 
merchandise  and  allowed  it  to  be  carried  as  baggage.  Ross  v.  Missouri, 
K.  &  T.  R.  R.,  4  Mo.  App.  582  (1877);  American  Express  Co.  v.  Per- 
kins, 42  111.  458  (1867). 

*  Erie  Railway  Co.  v.  Wilcox,  84  111.  239  (1876);  Southern  Express 
Co.  V.  Kaufman,  12  Heiskell  (Tenn.),  161  (1873). 

It  has,  however,  been  held  that  the  carrier  who  receives  goods  which 


214  THE   MODERN   LAW   OF   CARRIERS. 

negligence  on  the  part  of  the  consignor,  in  omitting 
wholly  to  notify  the  consignee  of  the  shipment  of  a 
horse,  was  held  fatal  to  his  recover}^  for  injury  to  the 
horse,  caused  by  delay  in  delivering  him/ 

But  in  order  to  exonerate  the  carrier,  it  is  necessary 
that  the  negligence  of  the  shipper  should  contribute  to 
the  loss,  and  whether  or  not  it  does  is  a  question  of  fact 
for  the  jury.' 

are  misdirected  is  liable  as  carrier  for  any  loss  occurring  while  the 
goods  are  in  his  custody,  even  though  he  leaves  them  at  some  station 
along  his  own  line.  O'Rourke  v.  Chicago,  B.  &  Q.  R.  R.,  44  Iowa,  526 
(1876).  This  decision,  unless  strictly  confined  to  its  own  peculiar  facts, 
is  opposed  to  the  weight  of  authority,  and  to  the  principle  of  the  rule  on 
the  subject  of  concurrent  negligence.  It  certainly  imposes  rigorous  re- 
quirements on  the  agents  of  the  carrier  who  receives  goods  for  trans- 
portation. It  would  seem  that  in  case  of  misdirection  the  carrier,  when 
the  fact  of  misdirection  is  ascertained,  and  the  transit  consequently 
ceases,  should  thereupon  be  liable  as  warehouseman  only.  Indeed,  the 
opinion  in  the  O'Rourke  case  recognizes  this  as  a  correct  rule. 

It  is  held  that  if  the  carrier  knows  the  right  direction  an  error  in 
marking  the  parcel  will  not  be  fatal  to  the  right  of  the  shipper  to  re- 
cover. Mahon  v.  Blake,  125  Mass.  477  (1878).  And  in  Guillaume  v. 
General  Trans.  Co.,  100  N.  Y.  491  (1885),  it  was  held  that  "if  the  di- 
rection on  the  bag  was  of  such  a  character  as  to  advise  the  defendant's 
agent  of  the  party  for  whom  it  was  intended,  or  to  put  it  on  inquiry  as 
to  whom  that  party  was  or  where  he  resided,  then  it  was  either  negli- 
gence, or  a  fair  question  whether  it  was  not  such  negligence  in  thus 
sending  the  bill  of  lading  "  to  the  wrong  address. 

1  Wise  V.  Great  Western  R.  Co.,  i  Hurlst.  &  N.  dz  (1856).  In  this 
case  the  consignor  knew  the  exact  time  when  the  train  on  which  the 
horse  was  shipped  was  due,  and  could  have  notified  the  consignee.  See, 
also,  cases  in  Chap.  XIV,  sect.  3. 

3  Shriver  v.  Sioux  City  &  St.  P.  R.  R.,  24  Minn.  506  (1878);  Hutch- 
inson V.  Chicngo,  St.  P.,  M.  &  O.  R  Co,  37  Minn.  524;  35  N.  W.  Rep. 
433  (1887);  Viner  v.  N.  Y.,  Alexandria,  G-  &  W.  S.  S.  Co.,  50  N.  Y.  23 
(1872).  In  this  case  there  was  no  direction  at  all  on  the  packages,  and 
the  bills  of  lading  were  drawn  to  the  order  of  the  plaintiff.  The  goods 
were  delivered  to  the  wrong  person.  A  nonsuit  was  granted  on  the 
trial,  which  the  Court  of  Appeals  set  aside,  and  held  that  the  plaintiff's 
omission  to  mark  the  packages,  and  the  writing  of  an  ambiguous  letter 
respecting  the  delivery  did  not,  as  matter  of  law,  constitute  negligence 
which  contributed  to  the  loss. 

In  a  case  where  the  goods  were  marked  with  the  initials  of  the  con- 
signee, and  the  carrier's  agent  wrote  out  the  wrong  name,  it  was  held 
that  the  carrier  was  liable  to  the  real  owner  for  a  delivery  to  the  wrong 
person.     Forsythe  z;.  Walker,  9  Penn.  148  (1848).     In  these  cases  there 


OWNER   ASSUMING   DIRECTION.  215 

4.  Owner  assuming  direction. — If  the  owner  under- 
takes to  direct  the  way  in  which  the  goods  shall  be  car- 
ried, or  to  manage  their  transportation,  the  carrier  is  not 
liable  for  any  injuries  caused  in  part  by  such  directions 
or  management/  In  giving  directions,  however,  as  to 
transportation,  the  owner  has  the  right  to  rely  on  the 
completion  of  the  transit  in  the  usual  and  reasonable 
time.^  And  where  he  acts  according  to  the  directions  of 
the  carrier's  agent,  his  acts,  even  though  they  incidentally 
occasion  injury,  will  not  be  imputed  to  him  for  negli- 
gence. As,  for  example,  where  a  shipper  of  live  stock 
asked  for  tan  for  bedding,  and  was  directed  by  the  freight 
agent  to  get  straw ;  the  straw  took  fire  from  sparks  from 
the  locomotive,  and  it  was  held  that  the  carrier  was  li- 
able.^ 

If  the  owner  has  no  control  over  the  transportation, 
his  mere  presence  will  not  exonerate  the  carrier  from  li- 
ability for  his  neglect  to  provide  a  suitable  car  for  trans- 
portation.* 

was  no  misdirection.  The  marks  were  insufficient  of  themselves  to 
identify  the  consignee,  and  no  doubt  the  carrier  was  entitled  to  time 
sufficient  to  ascertain  the  true  owner.  But  this  insufficient  direction 
clearly  did  not  excuse  a  delivery  to  the  wrong  person.  And  see  cases, 
post,  Ch.  XI,  section  2. 

^  Rixford  v.  Smith,  52  N.  H.  355  (1872).  So  if  the  shipper  directs 
that  the  transportation  be  delayed,  the  carrier,  during  the  period  of  de- 
tention, is  liable  only  as  warehouseman.  Rogers  z'.  Wheeler,  52  N.  Y. 
262  (1873).  Where  the  contract  provides  that  the  shipper's  agent  shall 
unload  live  stock,  the  carrier  is  not  liable  for  their  negligence  in  doing 
so.  Owen  v.  Louisville  &  N.  R.  R.,  9  S.  W.  Rep.  (Ky.)  698  (1888). 
But  the  suggestions  of  passengers  to  a  driver  to  go  out  of  his  road  are 
no  excuse  to  the  carrier  for  injuries  caused  thereby.  His  driver  should 
know  his  business.  Anderson  v.  Scholey,  114  Ind.  553  ;  17  North  East. 
Rep.  125  (1888). 

Where  the  carrier  failed  to  deliver  at  the  proper  terminus  (the  reason 
being  unexplained),  and  the  shipper  found  his  cattle  in  a  stable  in  an 
adjoining  city,  and,  without  consultation  with  carrier,  told  the  owner  of 
the  stable  to  keep  them  and  take  good  care  of  them  until  further  order, 
and  the  cattle  were  burned  in  the  stable,  held  that  the  carrier  was  not 
liable.     Cleveland  &  P.  R.  R.  v.  Sargent,  19  Ohio  St.  438  (1869). 

^  Phillio  V.  Sanford,  17  Texas,  227  (1858). 

^  Powell  V.  Pennsylvania  R.  R.,  32  Penn.  414  (1859). 

*  Peters  v.  New  Orleans,  J.  &  G.  N.  R.  R.,  16  La.  Ann.  222  (1861). 


2l6         THE  MODERN  LAW  OF  CARRIERS. 

It  often  happens  tliat  the  shipper,  at  the  time  of  ship- 
ment, knows  that  there  is  some  defect  in  the  equipment 
of  the  vessel  or  vehicle  to  be  used  in  transporting  his 
o-oods.  It  has  been  much  debated  whether  this  knowl- 
edge  is  a  bar  to  his  recovery  in  case  loss  should  occur  from 
this  defect.  The  distinction  seems  to  be  whether  the  de- 
fect is  of  such  a  character  that  it  can  be  obviated  during 
the  transit.  If  it  can,  the  shipper  has  the  right  to  pre- 
sume that  it  will  be.  If  it  is  intrinsic,  and  not  removable 
during  the  transit,  the  shipper  cannot  complain  if  a  loss 
should  occur  in  consequence  of  a  defect  of  which  he  had 
notice,  and  to  the  transportation,  notwithstanding  which, 
he  impliedly,  if  not  expressly,  consented.^ 

But  if  a  drover,  traveling  on  a  free  pass  with  cattle  carried  at  reduced 
rates,  in  consideration  thereof  agrees  to  take  all  care  of  them,  the  carrier 
is  not  liable  for  injuries  resulting  from  the  want  of  such  care,  unless 
there  be  gross  negligence  on  the  part  of  the  carrier.  Central  R.  R.  & 
Banking  Co.  v.  Smitha,  85  Ala.  47;  s.  c.  4  Southern  Reporter,  708;  38 
Alb.  L.  J.  298  (1888). 

1  Illinois  Central  R.  R.  v.  Hall,  58  111.  409(1871);  Miltimore  z'. 
Chicago  &  N.  W.  R.  Co.,  37  Wis.  190  (1875).  If  the  car  into  which  the 
shipper  puts  his  goods  is  conspicuously  unfit  for  the  purpose,  the  carrier 
will  not  be  liable  for  damages  caused  by  such  unfitness,  although  his 
agent  directed  the  shipper  to  put  the  goods  there.  In  this  case  the 
agent  of  the  carrier  did  not  know  of  the  particular  defect  which  caused 
the  injury,  and  the  shipper  did.  Betts  v.  Farmers'  Loan  &  T.  Co.,  21 
Wis.  80  (1866). 

To  the  same  effect  is  Great  Western  R.  Co.  v.  Hawkins,  18  Mich. 
427  (1869).  In  Southern  &  N.  Ala.  R.  R.  z;.  Wood,  66  Ala.  167,  41 
Am.  Rep.  749  (1880),  it  was  held  that  knowledge  by  the  shipper  that 
there  was  no  depot  nor  agent  at  the  station  to  which  the  goods  were  con- 
signed would  exonerate  the  carrier  from  any  liability  for  failure  to  pro- 
vide either.  On  the  other  hand  the  same  court  has  held  that  knowledge 
by  the  shipper  that  his  cotton  would  be  carried  on  an  open  car  was  no 
bar  to  his  recovery  for  its  destruction  by  fire,  which  would  not  have 
occurred  had  the  cotton  been  in  a  covered  car.  Montgomery  &  W.  P. 
R.  R.  V.  Edmonds,  41  Ala.  667  (1868). 

So,  if  the  shipper  agree  that  goods  may  be  carried  on  deck,  the  car- 
rier is  not  liable  for  damage,  which  would  not  have  been  done  to  goods 
under  the  hatches.  Lawrence  v.  Minturn,  17  How.  U.  S.  100  (1854). 
But  although  the  shipper  consent  that  the  goods  be  carried  on  deck, 
the  carrier  is  liable  for  damage  done  them  by  rain,  from  which  they 
could  have  been  protected  by  a  tarpaulin.  Schwinger  v.  Raymond,  83 
N.  Y.  192;  38  Am.  Rep.  415  (1880).     In  this  case  there  was  an  express 


OWNER   ASSUMING    DIRECTION.  217 

If  tlie  negligence  relied  on  to  exonerate  the  carrier  be 
on  the  part  of  the  shipper's  agent,  it  must  have  occurred 
in  the  course  of  his  employment.  A  truckman  sent  to 
deliver  goods  to  a  carrier  voluntarily  remained  and  as- 
sisted to  put  them  on  board  the  cars.  By  his  negligence, 
concurring  with  that  of  the  carrier's  agents,  the  goods, 
were  injured.     It  was  held  that  the  carrier  was  liable.^ 

The  same  rule  is  applicable  to  the  delivery  of  goods. 
If  the  negligence  of  the  consignee  combine  with  that  of 
the  carrier  to  cause  injury,  the  latter  is  exonerated,  other- 
wise not.  This  is  illustrated  by  two  cases,  apparently  in 
conflict,  but  really  harmonious. 

Goods  were  delivered  at  New  Orleans  at  a  spot  on  the 
levee  which  was  unsafe,  owing  to  the  negligence  of  the 
municipal  authorities.  The  ship-master  knew  it  was  an 
improper  place.  The  consignee  knew  of  the  arrival  of 
the  goods,  and  neglected  for  several  days  to  take  them 
away.  Meanwhile  they  were  injured.  Held  a  case  of 
concurrent  negligence,  and  that  the  consignee  could  not 
recover  damages.'^ 

contract  to  cover  the  goods,  and  the  carrier  was  requested  to  fulfill  it, 
but  neglected  so  to  do. 

Where  cattle  are  carried,  and  the  drover  fail  to  examine  the  cars  be- 
fore loading,  but  afterwards  observes  the  overcrowding,  and  that  the 
animals  are  suffering,  and  calls  attention  of  the  conductor  to  it,  but  is 
told  that  there  are  no  other  cars,  and  does  not  insist  on  unloading,  this 
is  contributory  negligence.  Squire  v.  New  York  Cent.  R.  R.,  98  Mass. 
239  (1867). 

Where  a  danger,  such  as  a  swinging-door  in  a  ferry-house,  is  clearly 
obvious  to  a  passenger,  he  is  bound  to  notice  and  avoid  it,  and  his  not 
doing  so  is  contributory  negligence.  Hayman  v.  Penn.  R.  R.,  118  Penn. 
508  (1888). 

^  Merritt  v.  Old  Colony  &  N.  R.  Co.,  11  Allen  (Mass.),  80  (1865). 
But  in  Hart  v.  Chicago  &  N.  W.  R.  Co.,  69  Iowa,  485  (1888),  the  court 
said  (p.  488):  "If  the  immediate  cause  of  the  loss  was  the  act  of  the 
owner,  as  between  the  parties  absolute  justice  demands  that  the  loss 
should  fall  upon  him,  rather  than  upon  the  one  who  has  been  guilty  of 
no  wiong;  and  it  can  make  no  difference  that  the  act  cannot  be  said  to 
be  either  wrongful  or  negligent." 

'  Northern  v.  Williams,  6  La.  Ann.  578  (185 1).  The  reader  should 
not  omit  to  peruse  the  graphic  description  at  p.  581  of  this  case. 


2l8  THE    MODERN    LAW   OF   CARRIERS. 

But  where  the  injury  was  caused  by  negligence  of  the 
carrier  s  servants  in  unloading  the  goods  from  its  cars,  it 
was  held  that  the  carrier  was  not  exonerated  by  a  previous 
neglect  on  the  part  of  the  consignee  to  comply  with  the 
known  rule  of  the  carrier  to  come  and  unload  the  goods 
himself.  The  consignee's  negligence  did  not  contribute 
to  the  injury.^  But  wherever  the  consignor's  negligence 
does  contribute  to  the  loss,  he  cannot  recover.^ 

5.  Illegality  of  voyage  or  shipment. — The  carrier  is 
not  liable  for  injuries  to  persons  who  are  combined  with 
the  carrier  in  violating  the  law.  This  rule  was  applied  in 
an  action  brought  to  recover  damages  for  the  death  of  a 
negro  servant  of  a  Confederate  soldier,  who  was  being 
transported  by  the  carrier  to  the  scene  of  hostilities.   The 

^  Kimball  v.  Western  R.  R.,  6  Gray  (Mass.),  542  (1856);  Shriver  v. 
Sioux  City  &  St.  P.  R.  R.,  24  Minn.  506  (1878).  This  is  in  analogy  to 
the  decisions  in  actions  for  personal  injuries,  to  the  effect  that  if  the 
defendant,  by  the  exercise  of  ordinary  care  and  diligence,  could  have 
avoided  the  mischief  which  happened,  prior  negligence  on  the  plaintiff's 
part  will  be  no  bar  to  his  recovery.  Green  v.  Erie  R.  Co.,  11  Hun  (N. 
Y.),  Z2>1  (1877);  Kenyon  v.  N.  Y.  C  &  H.  R.  R.  R.,  5  Hun,  479  (1875); 
Radley  v.  London  &  N.  W.  R.  Co.,  L.  R.  i  App.  Ca.  754,  759  (1876); 
International  &  G.  N.  R.  Co.  v-  FoUiard,  66  Tex.  603  (1886). 

Though  a  consignee'  delay  removal  of  goods,  after  notice  of  arrival 
by  the  carrier,  beyond  the  time  limited  for  the  purpose  by  the  bill  of 
lading,  the  carrier  will  of  course  be  liable  if  it  can  be  shown  that  loss  or 
injury  occurred  after  arrival,  but  before  the  expiration  of  such  period. 
The  consignee's  negligence  would  not  be  contributory.  See  McKinney 
V.  Jewett,  90  N.  Y.  267,  272  (1882).  So  where  a  package  was  directed 
to  a  person  at  H.,  who  was  not  there  when  the  coach  arrived,  nor  for 
some  days  after,  it  was  held  that,  as  the  package  never  in  fact  arrived, 
the  absence  of  the  person  to  whom  it  was  directed  did  not  exonerate 
the  owners  of  the  coach  from  their  liability.  Phillips  v.  Earle,  8  Pick. 
182  (1829). 

Negligent  act  or  omission  of  plaintiff  is  no  ground  of  defense  unless 
it  contributed  to  the  injury  complained  of.  Haley  v.  Earle,  30  N.  Y. 
208  (1864);  Teall  V.  Barton,  40  Barb.  137  (1863);  Savage  v.  Corn  Ex. 
F.  &  I.  N.  Ins.  Co.,  16  N.  Y.  655  (1867),  aff'g  s.  c.  4  Bosw.  i  (1858); 
Hoffman  v.  Union  Ferry  Co.,  47  N.  Y.  176  (1872). 

2  Dougherty  v.  Chicago,  B.  &  Q.  R.  R.,  86  111.  467  (1877).  Where 
the  loss  was  caused  by  bad  stowage,  the  shipper  who  stowed  the  goods 
cannot  recover.  Thomas  v.  Ship  Morning  Glory,  13  La.  Ann.  269 
(1858). 


ILLEGALITY   OF   VOYAGE   OR   SHIPMENT.  219 

action  was  tried  after  the  termination  of  tlie  war.  But 
the  court  held  that  if  the  servant  paid  fare  as  an  ordinary 
passenger,  which  the  soldier  did  not,  the  carrier  would  be 
liable.^  A  carrier  engaged  in  transporting  passengers  on 
Sunday  is  liable  for  injuries  caused  by  the  explosion  of  a 
boiler  of  imperfect  construction  and  negligently  man- 
aged.^ And  where  goods  were  shipped  with  the  intent  to 
smuggle  them,  but  this  was  unknown  to  the  carrier,  and 
he  took  no  part  in  it,  it  was  held  that  he  was  liable  to  the 
shipper  for  the  loss  of  the  goods. 

The  rule  deducible  from  these  cases  is  this:  a  viola- 
tion of  law  by  the  passenger  or  shipper  does  not  put  him 
without  the  pale  of  the  law.  He  is  still  under  its  pro- 
tection, and  may  recover  for  the  violation  by  the  carrier 
of  other  requirements,  which  are  disconnected  from  the 
violation  of  law  by  the  passenger  or  shipper.  But  if  he 
and  the  carrier  are  engaged  in  a  common  enterprise 
which  is  unlawful,  neither  will  have  a  remedy  against 
the  other  for  injuries  occurring  in  the  prosecution  of  the 
enterprise. 

Thus  far  the  cases  referred  to  have  all  related  to  the 


^  Redd  V.  Muscogee  R.  R.,  48  Geo.  102  (1873).  Is  not  this  the  last 
case  in  the  United  States  in  which  a  recovery  was  allowed  for  the 
money-value  of  a  slave? 

2  Carroll  v.  Staten  Island  R.  R.,  58  N.  Y.  126  (1874).  This  decision 
is  based  expressly  on  the  ground  that  the  carrier  could  not  and  did  not 
know  that  the  passenger  was  violating  the  Sunday  law.  But  in  Mer- 
ritt  V.  Earle,  29  N.  Y.  115  (1864);  affg.  s.  c.  31  Barb.  38  (1859),  it  was 
held  that  the  fact  that  the  contract  was  made  and  the  property  de- 
livered on  board  the  vessel  on  Sunday  did  not  exempt  the  carrier  from 
liability  for  the  loss  of  the  property.  Where  the  law  permits  transporta- 
tion on  Sunday,  though  the  carrier  is  not  bound  to  do  business  on  that 
day,  yet  if  he  hold  himself  out  as  doing  so,  he  is  liable  for  his  failure. 
Merchants'  Wharf-Boat  Assn.  v.  Wood,  64  Miss.  661 ;  2  So.  Rep.  76 
(1887);  s.  c.  3  So.  Rep.  248  (1887).  Traveling  on  Sunday  was  formerly 
forbidden,  in  Massachusetts,  by  statute.  It  was  (until  a  more  recent 
statute)  held  that  damages  could  not  be  recovered  against  a  carrier  for 
personal  injuries  caused  to  a  person  transported  by  it  on  that  day. 
Bucher  v.  Cheshire  R.  R.,  125  U.  S.  555  (1888). 


220  THE   MODERN    LAW   OF   CARRIERS. 

shipper's  misconduct  or  negligence.     A  similar  rule  lias 
been  applied  to  the  carrier. 

Thus  it  has  been  held  that  a  notice  posted  in  the  bag- 
gage room  of  a  steamer,  that  the  carrier  would  not  be 
liable  for  the  loss  of  baggage  unless  it  was  checked,  even 
if  otherwise  effectual,  constituted  no  defense  in  a  case 
where  the  passenger  tried  to  obtain  a  check  for  his  bag- 
gage, but  could  not,  because  the  agent  whose  duty  it  was 
to  furnish  checks  was  absent.^ 

*  Freeman  v.  Newton,  3  E.  D.  Smith  (N.  Y.),  246  (1854).  If  the 
court,  in  Gleason  v.  Goodrich  Trans.  Co.,  32  Wis.  85  (1873),  had  been 
as  lenient  to  the  passenger  as  the  Court  of  Common  Pleas  was  in  Free- 
man V.  Newton,  the  decision  of  the  Wisconsin  case  might  have  been  dif- 
ferent. 

See  ante,  p.  161,  n.  3. 


CHAPTER  X. 


SECTION    I. 
HOW    THE   CONTRACT    OF   LIMITATION    MAY   BE    MADE. 

The  general  rule  is  clear,  tliat  a  carrier  cannot  relieve 
itself  entirely  from  the  liability  imposed  upon  it  by  the 
common  law,  for  any  particular  risk,  except  by  contract. 
We  have  already  shown  that  by  the  law  merchant  a 
carrier  by  sea  may  discharge  itself  from  liability,  by  an 
abandonment  of  its  interest  in  the  ship  and  her  freight. 
We  have  also  shown  that  the  carrier  may  say  to  the 
shipper  orally,  or  by  written  or  printed  notice  brought 
home  to  him :  I  will  not  be  liable  for  this  or  that  risk, 
beyond  a  certain  amount,  unless  you  comply  with  my 
reasonable  regulations.  But  in  all  these  cases  the  liabil- 
ity is  qualified  only — not  abrogated.  We  come  now  to 
the  consideration  of  the  cases  in  which  some  particular 
liability  is  entirely  abrogated.  And  this  can  only  be  done 
by  contract. 

Some  courts  have  been  more  liberal,  or  if  the  reader 
please,  more  lax  than  others  in  their  judgment  as  to  the 
quantum  of  proof  necessary  to  establish  the  contract. 
But  in  no  well-considered  case  has  it  ever  been  held  that 
the  liability  for  any  particular  risk  can  be  abrogated  by  a 
mere  notice,  that  is  to  say  by  the  carrier's  own  act,  not 
assented  to  by  the  shipper.^ 

1  Southern  Express  Co.  v.  Newby,  36  Georgia,  635  (1867);  Bissell 
V.  N.  Y.  Central  R.  R.,  25  N.  Y.  442  (1862);  Dorr  v.  New  Jersey  Steam 
Navigation  Co.,  11  N.  Y.  485  (1854). 

The  rule  is  well  expressed  in  Moore  v.  Evans,  14  Barb.  524  (1852): 
"  In  this  State,  carriers  have  not  been  allowed  to  limit  their  liability  by 


222  THE    MODERN    LAW    OF    CARRIERS. 

In  the  case  of  the  shipment  of  goods  to  be  transported 
as  freight  it  is  nsual  for  the  consignor  to  receive  a  bill  of 
lading,  expressing  the  terms  and  conditions  upon  which 
the  merchandise  is  to  be  carried.  He  is  presumed  to 
assent  to  its  conditions,  because  he  receives  it  under  cir- 
cumstances which,  by  the  ordinary  usages  of  business, 
would  naturally  lead  him  to  infer  that  the  document  he 
receives,  which  is  his  muniment  of  title,  quasi  negotiable 
and  on  the  faith  of  which  he  may  borrow  money,  is  a  con- 
tract and  not  a  mere  receipt.^ 

The  rule  is  not  changed  even  though  it  be  shown  that 
the  consignor  did  not  read  the  bill  of  lading.^ 

their  own  act."  New  Jersey  Steam  N.  Co.  v.  Merchants'  Bank,  6  How. 
U.  S.  343  (i??48);  Wallace  v.  Sanders,  42  Geo.  486  (1871).  In  this 
case  the  Court  say  :  "  The  railroad  cannot,  by  any  act  of  its  own,  limit 
its  liability,  but  if  the  act  have  the  consent  of  the  other  party,  then  the 
rule  changes,  and  the  stipulation  becomes  a  contract."  This  is  espe- 
cially clear  where  the  loss  arises  from  negligence.  Mann  v.  Birchard, 
40  Vt.  326  (1867);  Sager  v.  Portsmouth,  S.  &  P.  &  E.  R.  R.,  31  Maine, 
228  (1850);  Fillebrown  v.  Grand  Trunk  R.  Co.,  55  Ibid,  462  (1867);. 
Judson  V.  Western  R.  R.,  88  Mass.  486  (1863). 

*  Huntington  v.  Dinsmore.  4  Hun,  66;  6  Thomps.  &  C.  (N.  Y.)  195 
(1875);  Long  V.  New  York  Central  R.  R.,  50  N.  Y.  76  (1872);  Grace 
V.  Adams,  100  Mass.  505  (1868);  Snider  v.  Adams  Ex.  Co.,  63  Mis- 
souri, 376  (1876);  Brehme  v.  The  same,  25  Md.  328  (1866);  McMahon 
V.  Macy,  51  N.  Y.  155  (1872);  Farnham  v.  Camden  &  Amboy  R.  R., 
55  Penn.  53  (1867);  Am.  Ex.  Co.  v.  Second  Natl.  Bank,  69  Penn.  394 
(1871).  In  short,  a  bill  of  ladmg  is  a  contract.  Logan  v.  Mobile  Trade 
Co.  46  Ala.  514  (1871). 

It  has  been  for  many  centuries  usual  for  the  carrier  by  sea  to  deliver 
a  bill  of  lading  to  the  shipper.  The  delivery  of  an  inland  bill  of  lading 
was  perhaps  suggested  by  the  language  of  Best,  C.  J.,  in  Brooke  v.  Pick- 
wick, 4  Bing.  218  :  "  If  coach  proprietors  wish  honestly  to  limit  their 
responsibility,  they  ought  to  announce  the  terms  to  every  individual  who 
applies  at  their  office,  and  at  the  same  lime,  to  place  in  his  hands  a 
printed  paper,  specifying  the  precise  extent  of  their  engagement.  If 
they  omit  to  do  this,  they  attract  customers  under  the  confidence  in- 
spired by  the  extensive  liability  which  the  common  law  imposes  on 
carriers,  and  then  endeavor  to  elude  that  liability  by  some  limitations 
which  they  have  not  been  at  the  pains  to  make  known  to  the  individual 
who  has  trusted  them." 

2  Grace  v.  Adams,  100  Mass.  505  (1868).  In  this  case  the  Court 
say  :  "  It  is  not  claimed  that  the  shipper  did  not  know  that  the  receipt 
was  a  contract  or  a  bill  of  lading.      It  was  his  duty  to  read  it."     Snider 


HOW    CONTRACT    LIMITATION    MADE.  223 

This  rule  was  applied  in  a  case  where  the  shipper 
tendered  a  bill  of  lading,  containing  an  agreement  to 
transport  the  goods  to  Detroit.  This  city  was  beyond  the 
carrier's  line.  The  freight  clerk  interlined  in  red  ink 
before  Detroit  the  words  "  to  Toledo  for  "  and  sent  it  back. 
The  shipper  retained  the  receipt  without  objection.  Held 
that  he  must  be  deemed  to  have  assented  to  its  terms  and 
that  the  carrier  was  not  liable  for  a  loss  by  fire  occuring 
at  Detroit.^ 

The  same  rule  was  applied  in  a  case  where  the  shipper 
paid  more  than  the  usual  price  for  transportation,  and 
might,  therefore,  naturally  have  inferred  that  the  carrier's 
liability  was  unrestricted.^ 

In  this  latter  case  the  Court  does  not  appear  to  have 
considered  the  reason  of  the  rule  on  this  subject  already 
stated.  This  rule  is  defensible  only  on  the  ground  that 
the  carrier  has  a  right  to  charge  a  higher  price  for  assum- 
ing the  liability  of  an  insurer,  than  for  the  assumption  of 
a  restricted  liability.  He  cannot  refuse  to  carry  as  com- 
mon carrier  and  to  be  liable  as  such,  to  the  full  extent 

V.  Adams  Ex.  Co.,  63  Mo.  376  (1876).  In  this  case  the  Court  say: 
"The  instrument  showed  on  its  face  that  it  was  not  merely  a  receipt. 
.  .  .  It  was  his  duty  to  read  it."  Mulligan  v.  Illinois  Central  R. 
Co.,  36  Iowa,  181  (1873).  American  Merchants'  Union  Ex.  Co.  v. 
Schier,  55  111.  140  (1870),  disapproves  the  decision  in  the  Grace  case, 
and  holds  that  the  question  whether  the  shipper  assented  to  the  restric- 
tions and  conditions  in  an  inland  bill  of  lading  is  one  of  fact  for  the 
jury. 

A  contract  of  exemption,  signed  by  both  parties,  is  different  from  a 
notice  or  receipt  given  to  the  shipper,  and  is  not  within  a  statute  invali- 
dating the  latter,  even  though  the  shipper  did  not  read  it.  111.  Cent.  R. 
R.  V.  Jonte,  13  Bradwell  (111.  App.),  424  (1883). 

There  are  certain  rules  and  regulations  which  a  carrier  may  adopt, 
of  which  a  passenger  is  bound  to  take  notice.     An^e,  p.  178,  n.  i. 

^  Muller  V.  Cincinnati,  H.  &  D.  R.  R.,  2  Cincinnati  Superior  Ct. 
Rep.  (Ohio),  280  (1872).  It  is  to  be  observed,  however,  that  this  was  a 
case  of  delivery  to  a  connecting  line,  and  that  there  is  no  obligation 
upon  a  carrier  to  transport  goods  beyond  the  terminus  of  his  own  line. 

'  Huntington  v.  Dinsmore,  4  Hun,  66 ;  6  Thomps.  &  Cook  (N.  Y.), 
^95  (1875)- 


224         '^HE  MODERN  LAW  OF  CARRIERS. 

imposed  b}-  the  common  law.  But  lie  may  say,  I  will 
carry  for  less  if  you  will  relieve  me  from  this  onerous 
common  law  responsibility.  The  real  question  is  this :  . 
If  the  shipper  is  unwilling  to  be  his  own  insurer,  shall  he 
pay  his  premium  of  insurance  to  the  carrier  or  to  an 
insurance  company  ?  In  practice  so  far  as  marine  risks 
are  concerned,  the  latter  plan  has  proved  the  more  con- 
venient and  is  that  generally  adopted. 

But  if  the  carrier  demand  and  receive  compensation 
additional  to  that  usually  charged  for  transportation  with 
restricted  risk,  where  is  the  consideration  for  the  restric- 
tion? Clearly  the  agreement  for  it  would  seem  to  be 
nudum  pactum} 

The  delivery  by  a  carrier  to  a  customer  of  envelopes, 
on  which  is  printed  an  agreement  for  transportation  leav- 
ing blanks  for  the  specification  of  the  termini,  does  not 
amount  to  a  general  contract  to  carry  the  money,  for  con- 
taining which  the  envelopes  were  adapted,  to  every  point 
with  which  the  carrier  has  connections.  Under  such  cir- 
cumstances the  carrier  may  lawfully,  by  the  delivery  of 
an  appropriate  bill  of  lading,  limit  its  liability  to  its  own 
route.^ 


^  The  criticism  thus  suggested  is  supported  by  the  reasoning  of  the 
Supreme  Court  of  Massachusetts  and  of  Maine  in  the  following  cases  : 
Buckland  v.  Adams  Ex.  Co.,  97  Mass.  124  (1867);  Perry  v.  Thompson, 
98  lb.  249  (1867);  Fillebrown  v.  Grand  Trunk  R.  Co.,  55  Maine,  462 
(1867).  In  the  latter  case  the  consignor,  before  the  special  written 
contract  was  delivered,  had  made  with  the  carrier  a  contract  for  trans- 
portation. This  original  contract  was  without  restriction  as  to  risk.  It 
was  held  that  there  was  no  consideration  for  a  restriction  contained  in 
a  bill  of  lading,  delivered  upon  the  specific  shipment  of  a  particular  lot 
of  goods  shipped  under  this  contract,  and  that  the  restriction  was  there- 
fore not  binding  upon  the  shipper.  In  the  two  former  cases  there  had 
been  a  previous  general  course  of  dealing,  pursuant  to  which  receipts 
were  not  given  to  the  shipper,  and  the  Court  held  that  the  man  to  whom 
the  receipt  was  delivered  had  no  authority  to  accept  it.  See,  also,  Cen- 
tral R.  R.  V.  Dwight  Mfg  Co.,  75  Geo.  609  (1885). 

'  Pendergast  v.  Adams  Ex.  Co.,  101  Mass.  120  (1869);  see  Chap. 
XIII,  sect.  3. 


EVIDENCE   shipper's   assent   TO   CONTRACT.         225 

SECTION    II. 

REQUISITE     EVIDENCE     OF     THE     SHIPPER'S     ASSENT     TO     THE 

CONTRACT. 

There  is  a  large  class  of  cases  which  hold  that  evi- 
dence is  necessary  of  some  afi&rmative  assent  on  the  part 
of  the  shipper  to  the  limitations  of  the  proposed  contract. 

On  principle  snch  consent  must  always  be  shown  in 
one  way  or  other.  If  by  the  course  of  business  it  is 
customary  that  the  carrier  should. deliver  and  the  shipper 
receive  a  bill  of  lading  or  other  written  contract,  and  he 
does  receive  it,  this  is  evidence  of  assent.  On  this  prin- 
ciple the  cases  already  referred  to  were  decided. 

There  was,  however,  a  time  when  it  was  not  usual  in 
all  the  States  to  deliver  such  contracts,  but  the  shipper 
commonly  received  only  a  memorandum  or  receipt  speci- 
fying the  articles  shipped,  the  names  of  consignor  and 
consignee,  and  the  place  of  delivery.  When  carriers  first 
undertook  to  add  limitations  and  restrictions  to  these 
receipts,  it  was  held  that  evidence  of  assent  on  the  part  of 
the  shipper  should  be  given,  and  that  the  latter  could 
show  that  he  did  not  read  the  paper  containing  the  alleged 
limitations,  nor  understand  their  purport,  nor  know  that 
the  paper  given  him  was  anything  more  than  a  receipt. 

This  has  been  held : 

I.  In  reference  to  local  express  companies  receiving 
baggage  from  travelers  for  transportation  to  their  imme- 
diate destination.  Various  circumstances  bearing  on  the 
question  of  assent  have  in  such  cases  been  put  in  evidence, 
as,  for  example,  that  the  limitations  were  printed  in  small 
type,  and  that  the  printed  paper  claimed  to  be  a  contract 
was  delivered  in  a  dimly  lighted  car,  moving  rapidly,  in 
which  it  was  difficult  to  read.^ 

^  Blossom  V.  Dodd,  43  N.  Y.  264  (1870);  Madan  v.  Sherrard,  42  N. 
Y.  Superior  Ct.  Rep.  353  (1877).     MacMahon  v.  Macy,  51   N.  Y.   155 
15 


226  THE   MODERN   LAW   OF   CARRIERS. 

The  principle  of  these  decisions;  to  wit,  that  there  is 
nothing  in  the  nature  of  the  transaction,  or  the  custom  of 
the  trade  which  should  naturally  lead  the  shipper  to  sup- 
pose that  he  was  receiving  and  accepting  the  written  evi- 
dence of  a  contract,  is  well  illustrated  by  the  case  of 
Woodruff  V.  Sherrard/ 

There  a  lady,  after  having  given  her  baggage  check 
to  the  carrier's  clerk  at  his  ofi&ce,  and  given  directions  for 
delivery,  turned  to  leave  the  office.  At  this  moment  the 
contract  was  complete.  At  the  suggestion  of  a  friend  she 
returned  and  asked  for  a  receipt.  The  clerk  gave  her  a 
printed  paper  containing  a  form  of  agreement  limiting  the 
carrier's  liability  to  $100.  This  she  did  not  read,  and  it 
was  held  that  she  never  assented  to  its  terms  and  was  not 
bound  by  it.  In  another  case  ■  attention  was  called  to  the 
fact  that  a  revenue  stamp  partly  covered  the  clause  by 
which  it  was  sought  to  limit  the  carrier  s  liability  to  $ico, 
so  that  the  clause  could  not  be  read  intelligibly. 

2.  When  express  companies  first  undertook  the  charge 
of  small  parcels,  which  they  transported  by  means  of  the 

(1872),  distinguishes  Blossom  v.  Dodd,  as  does  also  Kirkland  v.  Dins- 
more,  and  Belger  v.  Dinsmore;  post^  p.  228,  n.  2. 

The  burden  in  such  cases  is  on  the  plaintiff  to  show  that  he  did  not 
know  the  nature  of  the  paper  he  received. 

^  Woodruff  V.  Sherrard,  9  Hun  (N.  Y.),  322  (1876).  A  comparison 
between  this  case  and  that  of  Long  v.  New  York  Central  R.  R.,  50  N. 
Y.  76  (1872),  illustrates  the  text.  In  the  latter  there  was  verbal  nego- 
tiation which  ended  in  the  delivery  of  the  goods.  On  receiving  these 
the  carrier  delivered  a  written  instrument  called  a  receipt,  which  the 
Court  held  constituted  a  valid  contract  which  made  the  evidence  of  the 
prior  negotiation  incompetent.  The  Court  say:  "The  evidence  in  this 
case  accords  with  what,  from  experience,  may  almost  be  assumed  to  be 
the  universal  custom  of  common  carriers,  to  wit,  that  freight  is  always 
carried  by  this  defendant  under  a  written  contract.  .  .  .  The 
verbal  contract  was  merged  in  the  written  agreement,  and  the  latter 
must  be  taken  as  the  evidence,  and  the  sole  evidence,  of  the  final  and 
deliberate  agreement  of  the  parties.  .  .  .  By  it  alone,  in  the  absence 
of  mistake  or  fraud,  the  duties  and  liabilities  of  the  parties  must  be 
regulated." 

2  Perry  v.  Thompson,  98  Mass.  249  (1867). 


EVIDENCE   shipper's   assent   TO   CONTRACT.         227 

cars  or  steamboats  of  other  carriers,  a  like  rule  was 
applied  to  them,  and  the  mere  delivery  to  the  shipper  of  a 
receipt  containing  a  clause  purporting  to  exempt  the 
express  company  from  liability,  either  for  specified  causes 
or  in  a  specified  amount,  was  held  not  to  amount  to  a  con- 
tract unless  the  terms  were  read  and  assented  to  by  the 
shipper.^ 

But  the  practice  has  become  general  of  delivering  to 
the  shipper  what  the  express  companies  style  "  Domestic 
Bills  of  Lading,"  which  obviously  contain  much  more 
than  a  receipt.  It  is  believed  that  wherever  this  practice 
has  become  general,  courts  would  apply  to  these  docu- 
ments rules  similar  to  those  which  for  many  years  have 
been  applied  to  marine  bills  of  lading,  and  would  hold 
that  they  constitute  contracts,  and  that  their  terms  are 
binding  upon  both  parties.^ 

1  Adams  Express  Co.  v.  Nock,  2  Duvall  (Ky.),  562  (1866);  Belger 
V.  Dinsmore,  51  Barb.  (N.  Y.)  69  (1868);  reversed  51  N.  Y.  166  (1872); 
Kirkland  v.  Dinsmore,  2  Hun,  46;  4  Thomps.  &  Cook  (N.  Y.),  304 
(1874);  revd.  62  N.  Y.  171  (1875). 

^  Farnham  v.  Camden  &  Amboy  R.  R.,  55  Penn.  53  (1867);  Kirk- 
land V.  Dinsmore,  62  N.  Y.  171  (1875);  York  Co.  v.  Central  R.  R.,  3 
Wall.  107  (1865);  VVestcott  v.  Fargo,  6  Lansing  (N.  Y.),  319  (1872); 
Dillard  v.  Louisville  &  Nashville  R.  R.,  2  Lea  (Tenn.),  288  (1879);  see 
Lewis  V.  Great  Western  R.  Co.,  5  Hurl.  &  Norm.  867  (i860). 

Collender  v.  Dinsmore,  55  N.  Y.  200  (1873),  holds  that  an  express 
receipt  delivered  at  the  time  of  shipment  is  a  contract,  s.  p.,  Magnin 
V.  Dinsmore,  56  N.  Y.  168  (1874);  Steinweg  v.  Erie  R.  Co.,  43  N.  Y. 
123  (1870);  Dorr  V.  New  Jersey  Steam  Navigation  Co.,  11  N.  Y.  485 
(1854);  IJreese  v.  United  States  Tel.  Co.,  48  N.  Y.  132  (1871);  Young 
V.  Western  Union  Tel.  Co.,  65  N.  Y.  163  (1875).  The  two  latter  were 
telegraph  cases,  but  the  Court  intimate  that  the  decision  that  the 
clauses  in  the  telegraph  blank  were  binding  would  have  been  the  same 
had  it  been  a  bill  of  lading.  Hutchinson  v.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  37  Minn.  524;  35  N.  W.  Rep.  433  (1887). 

The  Pacific,  Deady  Rep.  17  (1861),  is  an  apparent  exception,  but 
was  decided  on  its  peculiar  facts.  The  goods  shipped  were  glass.  The 
carrier's  clerk  told  the  carman  that  the  carrier  would  not  be  responsible 
for  breakage,  and  wrote  the  words  "not  accountable  for  contents" 
across  the  face  of  the  bill  of  lading.  This  was  communicated  to  the 
shipper,  who  at  once,  and  while  the  glass  was  on  the  wharf,  notified  the 
clerk  that  he  would  not  agree  to  the  limitation.  Held  that  the  carrier 
was  liable  for  breakage,  and  that  the  retention  of  the  bill  of  lading  by 


228         THE  MODERN  LAW  OF  CARRIERS. 

The  Supreme  Court  of  Illinois,  however,  must  perhaps 
be  excepted  from  this  general  statement.  That  court  has 
said  in  several  cases,  that  it  was  always  competent  for  the 
shipper  to  introduce  extrinsic  evidence  to  show  that  he 
did  not  understand  or  did  not  assent  to  the  terms  of  the 
bill  of  lading,  delivered  to  him  or  to  his  agent. ^ 

This  doctrine  seems  one-sided.  It  imposes  a  burden 
on  the  carrier  without  holding  the  shipper  to  any  obliga- 
tion. Ordinarily  if  a  man  receives  a  written  paper  as  evi- 
dence of  the  contract  between  him  and  the  other  contract- 
ing party,  it  is  his  duty  to  examine  it  and  to  notify  the 
other  contractor  if  he  does  not  assent  to  its  terms.  If  he 
fail  to  do  this,  the  other,  in  the  absence  of  fraud  or  mutual 
mistake,  has  a  right  to  rely  upon  the  statement  of  the 
written  contract.  Even  a  Court  of  Equity  will  not  relieve 
against  an  unilateral  mistake,  if  there  be  no  fraud.' 

the  shipper  did  not  under  the  circumstances  constitute  an  acceptance  of 
the  limitation. 

1  Field  V.  Chicago  &  Rock  Island  R.  R.,  71  111.458  (1874);  Mer- 
chants' Despatch  Co.  v.  Leysor,  89  111.  43  (1878);  Ibid  v.  Joesting,  89 
111.  152  (1878). 

But  in  Illinois  this  seems  to  be  governed  by  the  statute  of  that  State, 
which  provides  that  such  "  stipulation  expressed  in  the  receipt  given  for 
the  property  is  not  valid."  If,  however,  the  receipt  is  signed  by  the 
shipper  or  his  agent,  it  is  a  contract  and  is  valid.  111.  Cent.  R.  R.  v. 
Jonte,  13  Brad.  (111.  App.)  424  (1883).  And,  notwithstanding  the 
statute,  if  he  fully  know  the  contents  of  the  bill  of  lading  and  agrees  to 
its  terms  it  is  a  valid  contract.  Merchants'  Despatch  Co.  v.  Leysor, 
supra;  so.^  post,  p.  231.,  n.  5. 

In  Dakota  the  shipper's  signature  to  the  contract  is  required  by 
statute  (Civil  Code,  §  1261,  1263),  except  as  to  the  rate  of  hire,  time, 
place  and  manner  of  delivery.  Under  this  statute  a  clause  in  a  bill  of 
lading  requiring  claims  to  be  presented  within  ninety  days  is  not  valid 
unless  signed  by  the  shipper.  Hartwell  v.  Northern  Pac.  Ex.  Co. 
(Dak.)  3  Lawy.  Rep.  Ann.  342  ;  41  N.  W.  Rep.  732  (1889).  A  similar 
statute,  without  the  exception,  has  been  passed  in  Michigan.  (Laws 
1873,  No.  198.)  Feige  z;.  Michigan  Central  R.  R.,  62  Mich,  i;  28  N. 
W.  Rep.  685  (1886). 

2  Jackson  v.  Andrews,  59  N.  Y.  244  (1874);  Bryce  v.  Lorrillard 
Fire  Ins.  Co.,  55  N.  Y.  240  (1873).  In  Belger  v.  Dinsmore,  51  N.  Y.  166 
(1872),  reversing  s.  c.  5 1  Barb.  69  (1870),  the  Court  said  that  the  presump- 
tion of  law  was  that  a  party  receiving  an  instrument  in  any  busi- 
ness (in  this  case  an  express  company's  receipt)  is  acquainted  with  its 


EVIDENCE  shipper's  assent  to  contract.      229 

And  it  should  be  observed  that  the  statement  of  the 
rule  iu  Field  v.  Chicago  &  Rock  Island  R.  R.^  was  not 
necessary  to  the  decision  of  the  case.  It  was  shown  that 
the  shipper  accepted  the  receipt  with  knowledg"e  of  its  con- 
tents. And  this  was  held  binding  on  him.  The  receipt 
or  bill  of  lading  limited  the  carrier's  liability  to  its  own 
line,  and  this  was  held  to  be  a  valid  limitation.  The  same 
court  has  held  that  it  is  not  necessary  that  the  shipper 
should  sign  a  duplicate  of  the  express  receipt  or  inland 
bill  of  lading  in  order  to  bind  him  by  its  terms.^ 

The  Supreme  Court  of  Wisconsin  has  held  that  though 
the  possession  by  the  shipper  of  a  receipt  from  the  carrier 
is  prima  facie  evidence  of  his  assent  to  the  terms  of  the 
receipt,  yet  parol  evidence  is  admissible  to  show  that  he 
never  assented  to  its  terms.^ 

contents.  In  Kirkland  v.  Dinsmore,  62  N.  Y.  171  (1875),  it  is  held: 
(i)  that  an  express  company's  receipt  which  the  shipper  supposed  ''was 
to  show  that  the  company  received  the  money,  and  that  the  money  was 
to  be  sent,"  and  looked  at  it  to  see  where  it  was  to  be  carried,  was  a 
contract;  (2)  that  it  mnde  no  difference  that  the  shipper  did  not  know 
it  was  a  contract,  and  did  not  read  it;  (3)  that  the  carrier  had  a  right 
to  suppose  he  read  it  and  assented  to  its  terms. 

In  Moore  v.  Evans,  14  Barb.  524  (1852),  a  "memorandum  or  re- 
ceipt"  specifying  the  names  of  consignors  and  consignees,  the  amount 
of  frcigut  payable,  the  description  and  dcsiination  of  the  goods,  and 
mode  of  carriage,  with  the  words  "  owner's  risk,"  was  held  a  special 
contract  binding  on  the  shipper.  It  does  not  appear  whether  he  knew 
its  contents. 

In  Wallace  v-  Sanders,  42   Georgia,  486  (1871),  the  receipt  was  in 

the   following  form :    "  Received  of  Mr.  one  horse,  two  mules 

and  one  wagon,  for  shipment  to  Atlanta,  at  his  own  risk.  John  F. 
Reynolds,  Agt."  This  was  held  to  be  a  binding  contract,  notwithstand- 
ing the  provisions  of  the  Georgia  statute  that  the  carrier  cannot  limit 
his  liability  "  by  entry  on  receipts  given,"  provided  that  the  owner  had 
a  fair  opportunity  to  understand  the  terms  of  the  contract.  This  the 
Court  held  should  have  been  left  to  the  jury.  It  is  manifest  from  these 
cases  that  the  precise  form  of  the  paper  is  not  of  so  much  consequence, 
nor  whether  it  be  called  a  notice,  a  receipt,  or  bill  of  lading.  The  cir- 
cumstances under  which  it  is  given  and  received  must  control.  For  other 
Georgia  cases  see  post,  p.  231,  n.  5. 

^71111.458(1874). 

-  Adams  Ex.  Co.  v.  Haynes,  42  111.  89  (1866);  Chicago  &  N.  W.  R. 
Co.  V.  Montfort,  60  111.  175  (1871). 

3  Boorman  v.  Am.  Exp.  Co.,  21  Wis.  152  (1866);  Strohn  v.  Detroit  & 


230  THE   MODERN   LAW   OF   CARRIERS. 

The  sending  b}^  the  shipper  to  the  carrier,  for  signa- 
ture, of  printed  receipts  furnished  by  the  carrier,  contain- 
ing limitations  upon  his  liability,  amounts  to  an  assent  to 
the  terms  of  such  receipt.^ 

So  it  has  been  held  that  evidence  that  in  previous  in- 
stances the  carrier  had  delivered  to  the  shipper's  teamster 
a  printed  receipt  for  the  goods,  containing  a  contract  ex- 
empting the  carrier  from  liability  for  loss  by  fire,  and  that 
no  objection  had  been  made  by  the  shipper,  was  suf&cient 
to  prove  an  actual  assent  on  his  part  to  the  terms  of  this 
contract.^ 

For  a  reason  similar  to  that  which  controlled  the  de- 
cision of  the  cases  just  referred  to,  no  language  on  a  pas- 
senger ticket  is  held  to  amount  to  a  contract,  without 
proof  that  the  passenger  read  it  and  agreed  to  it.  These 
tickets  are  vouchers  that  the  passenger  has  paid  his  fare, 
and  is  entitled  to  the  usual  accommodation  on  the  car- 
rier's vehicle.     They  do  not,  per  se,  constitute  contracts.^ 

And  in  general  it  may  be  said  that  a  notice  by  the 
carrier  is  inoperative  to  limit  the  amount  or  character  of 

Mil.  R.  Co.,  21  Wis.  554  (1867).  In  a  later  case,  Morrison  v.  Phillips  & 
Colby  C.  Co.,  44  Wis.  405  ( 1878),  the  same  court  say  (p.  410):  "In  most 
cases  it  may  be  absolutely  conclusive." 

^  Falkenan  v.  Fargo,  44  How.  Pr.  Rep.  (N.  Y.)  325  (1872);  Westcott 
V.  Fargo,  6  Lansing  (N.  Y.),  319  (1872);  Wallace  v.  Matthews,  39 
Georgia,  617  (1869). 

'  Van  Schaack  v.  Northern  Trans.  Co.,  3  Biss.  394  (1872);  compare 
Adams  Ex.  Co.  v.  Stettaners,  61  111.  184  (1S71). 

^  Nevins  v.  Bay  State  Steamboat  Co.,  4  Bosw.  (N.  Y.)  225  (1859); 
Verner  v.  Sweitzer,  32  Penn.  St.  208  (1858).  A  commuter  on  whose 
ticket  a  notice  is  printed  purporting  to  limit  the  carrier's  liability  is  still 
a  passenger,  and  the  carrier  is  indictable  for  negligently  causing  his 
death.     Commonwealth  z;.  Vt.  &  Mass.  R.  R.,  108  Mass.  7  (1871). 

The  ticket  for  a  berth  in  a  sleeping-car  does  not  express  all  the  terms 
of  the  contract.  Lewis  v.  New  York  Sleeping-Car  Co.,  143  Mass.  267 
(1887). 

In  St.  Louis,  A.  &  T.  R.  R.  v.  Mackie,  i  Lawyers'  Rep.  667  (Su- 
preme Ct.,  Texas,  1888),  the  court  held  that  a  passenger  who  paid  for 
first-class  tickets,  and,  without  negligence  on  his  part,  received  second- 
class  tickets,  had  a  valid  cause  of  action  against  the  carrier  for  the  con- 
ductor's refusal  to  allow  him  to  travel  on  first-class  cars. 


EVIDENCE    shipper's    assent   TO    CONTRACT.        23 1 

his  liability,  unless  brouglit  home  to  the  shipper  and  ex- 
pressly or  impliedly  assented  to  by  him.  In  this  case  it 
becomes  a  contract,  and  in  strictness  of  terms  ought  not 
to  be  styled  a  notice  at  all.^ 

The  same  rule  applies  although  the  shipper  paid  the 
carrier  for  the  transportation  of  his  goods  at  a  reduced 
rate,  and  the  printed  table  of  the  rates  of  freight  stated 
that  the  carrier  would  assume  no  responsibility  for  the 
loss,  damage  or  delay  of  goods  carried  at  this  reduced 
rate.  Even  though  the  shipper  pays  only  this  reduced 
rate  of  freight,  evidence  must,  in  the  absence  of  a  written 
contract,  be  given  that  the  shipper  knew  of  the  restriction 
and  assented  to  it.^ 

In  making  proof  of  such  a  contract,  a  railway  ticket 
delivered  to  a  passenger^  or  a  check  for  baggage^  are  ad- 
missible in  evidence. 

The  real  distinction  is  this :  If  the  paper  delivered  to 
the  shipper  by  the  carrier  contains  the  terms  of  the  con- 
tract between  them,  and  is  accepted  by  the  shipper,  it  is 
conclusive  evidence  of  the  contract,  in  the  absence  of 
fraud  or  mutual  mistake.  But  if  it  is  a  notice  only,  and 
does  not  purport  to  be  a  contract,  or  does  not  contain  lan- 
guage sufficient  to  constitute  a  contract,  it  is  no  more 
than  a  parol  statement,  and  proof  must  be  given  of  ac- 
tual assent  by  the  shipper  to  its  terms.^ 

^  Camden  &  Amboy  R.  R.  Co.  v.  Baldauf,  16  Penn.  St.  67  (185 1); 
Southern  Express  Co.  v.  Crook,  44  Ala.  468  (1870);  Fibel  v.  Livingston, 
64  Barb.  (N.  Y.)  179  (1872);  Brown  v.  Adams  Ex.  Co.,  15  W.  Va.  812 
(1879);  Gott  V.  Dinsmore,  ui  Mass.  45  (1872);  Farmers'  Bank  v. 
Champlain  Trans.  Co.,  23  Vt.  186  (185 1). 

=«  Bait.  &  Ohio  R.  R.  v.  Brady,  32  Md.  zzz  (1869).  See  Thomas  v. 
The  Morning  Glory,  13  La.  Ann.  269  (1858).  That  such  a  reduced 
rate  was  a  sufficient  consideration  for  a  limitation  of  liability,  was  held 
in  Dillard  v.  Louisville  &  N.  R.  R.,  2  Lea  (Tenn.),  288  (1879). 

^  Barker  v.  Coflin,  31  Barb.  556  (i860). 

*  Wilson  V.  Chesapeake  &  Ohio  R.  R.,  21  Gratt.  (Va.)  654  (1872). 

*  In  Rome  R.  R.  v.  Sullivan,  32  Geo.  400  (1861),  it  was  said:  "The 
jury  may  consider  the  receipt,  together  with  all  the  facts  in  the  case,  to 
show  that  there  was  a  special  contract."  See  Geo.  R.  R.  v.  Spears,  66 
Geo.  485  (1881);  Geo.  Code,  sect.  2068. 

In  Judson  v.  Western  R.  R.,  88  Mass.  486  (1S63),  the  rule  in  Massa- 


232  THE   MODERN   LAW   OF   CARRIERS. 

In  some  cases,  like  that  of  the  Southern  Ex.  Co.  v. 
Crook/  the  further  qualification  is  annexed  that  the  terms 
of  this  notice  must  be  just  and  reasonable.  No  well-con- 
sidered case,  however,  holds  that  if  the  notice,  by  agree- 
ment of  the  shipper,  is  transformed  into  a  contract,  the 
justice  or  reasonableness  of  its  terms,  if  not  opposed  to 
public  policy,  are  a  proper  subject  for  the  consideration  of 
the  court. 

It  cannot  be  denied  that  the  earlier  English,  and  some 
of  the  American  decisions  recognize  and  maintain  the 
right  of  the  carrier  to  limit  the  amount  of  his  liability  by 
a  notice  posted  conspicuously  in  his  of&ce,  or  advertised 
generally,  or  contained  on  the  face  of  a  receipt  given  to 
the  shipper  or  passenger,  even  though  the  latter  does  not 
read  or  know  of  this  notice,^ 

But  the  distinction  thus  taken  is  not  supported  in  its 
full  extent  by  the  later  authorities.  As  far  as  there  was 
reason  and  good  sense  in  it,  the  cases  cited  and  comment- 
ed upon  in  the  ninth  chapter  adopt  it.  That  is  to  say,  a 
shipper  cannot  lawfully  mislead  a  carrier  by  imposing 
upon  him  the  carriage  of  goods  of  great  intrinsic  value, 
contained  in  a  package  or  wrapping  calculated  to  deceive 

chusetts  is  laid  down  that  "  a  notice  by  the  carrier  that  he  will  not  as- 
sume the  ordinary  responsibility  imposed  by  law,  if  brought  home  to 
him  and  assented  to  clearly  and  unequivocally,  will  be  binding,  because 
tantamount  to  an  express  contract." 

This  leaves  open  the  question  whether  placing  such  a  notice  in  his 
hands  will  amount  to  "  bringing  it  home  to  him,"  whether  he  reads  it  or 
not.  As  to  what  constitutes  assent,  it  is  said  that  "mere  silence  cannot 
be  said  to  amount  to  assent."  Buckland  v.  Adams  Ex.  Co.,  97  Mass. 
124(1867). 

Redfield  on  Railways,  vol.  2,  pt.  8,  sect.  11,  p.  88,  thus  states  the 
rule:  "At  all  events  the  carrier  must  show  that  the  owner  ...  ac- 
quiesced by  making  no  remonstrance." 

See  cases  ante,  p.  228,  n.  2. 

*  Southern  Ex.  Co.  v.  Crook,  44  Ala.  468  (1870). 

^  Cowen,  J.,  in  Cole  v.  Goodwin,  19  Wend.  251  (1838),  and  cases 
cited.  Hopkins  v.  Westcott,  6  Blatchf.  64  (1868);  Whitesell  v.  Crane,  a 
Watts  &  S.  (Penn.)  369  (1845);  Barney  v.  Prentiss,  4  Harr.  &  Johns. 
(Md.)  317  (1818). 


CONSTRUCTION    NEGLIGENCE    CONTRACTS.  233 

him  as  to  the  character  of  the  contents.  Farther  than 
this  no  recent  cases  of  authority  have  gone. 

The  change  in  th«  current  of  decisions  began  when  it 
was  held  that  a  notice  was  of  no  avail  unless  brought 
home  to  the  shipper,  no  matter  how  widely  it  had  been 
advertised.^  Then  followed  the  decisions  that  even  if 
notice  were  brought  home  to  the  shipper,  it  would  not  be 
binding  upon  him  unless  he  assented  to  its  terms,  and  if 
he  did  so  assent  it  would  cease  to  be  a  mere  notice  and 
become  a  contract.^ 

Merely  marking  a  package  C.  O.  D.  does  not  consti- 
tute a  contract  with  the  carrier  to  collect  the  price.  An 
agreement  by  him  so  to  do  must  be  proved,  either  by 
positive  evidence  or  by  proof  that  it  is  customary  for 
the  carrier  to  collect  the  price  on  receiving  parcels  so 
marked.^ 

SECTION    III. 

CONSTRUCTION    OF    CONTRACTS     CLAIMED     TO     EXEMPT     FROM 

NEGLIGENCE. 

It  has  been  shown  in  Chapter  IV  that  the  Federal 
Courts  and  courts  of  many  States,  deny  the  validity  of 

*  Peck  z;.  Weeks,  34  Conn.  145  (1867);  Bean  v.  Green,  12  Maine,  422 
(1835);  Sager  v.  Portsmouth  &  S.  &  P.  &  E.  R.  R.,  31  Maine,  228 
(1850);  Fillebrown  v.  Grand  Trunk  R.  Co.,  55  lb.  462  (1867);  Hollister 
V.  Nowlan,  19  Wend.  (N.  Y.)  234  (1838);  Cole  v.  Goodwin,  Ibid.,  251 
(1838);  Clark  V.  Faxton,  21  Ibid,  153  (1839);  Camden  &  Am  boy  R.  R. 
&  Trans.  Co.  v.  Belknap,  21  Ibid.  354  (1839);  Jones  v.  Vorhees,  10 
Ohio,  145  (1840);  Moses  v.  Boston  &  Maine  R.  R.,  24  N.  H.  71  (1851); 
Sanford  v.  Housatonic  R.  R.,  11  Gushing  (Mass.),  155  (1853).  This 
same  rule  was  applied,  even  to  a  reasonable  regulation  of  the  carrier,  in 
Macklin  v.  N.  J.  Steamboat  Co.,  7  Abb.  Pr.  N.  S.  (N.  Y.)  229  (1869). 

*  Blomenthal  v.  Brainerd,  38  Vermont,  402  (1866);  Western  Trans. 
Co.  V.  Newhall,  24  111.  466  (i860);  Derwort  v.  Loomer,  21  Conn.  244 
(1851);  Moses  V.  Boston  &  Maine  R.  R.,  32  N.  H.  523  (1856);  Dorr  v. 
N.  J.  Steam  Nav  Co.,  11  N.  Y.  485  (1854);  Rawson  v.  Penn.  R.  R.,  2 
Abb.  Pr.  N.  S.  (N.  Y.)  220  (1867);  Kimball  v.  Rutland  &  B.  R.  R.,  26 
Vt.  247  (1854);  Farmers'  &  Mechanics'  Bank  v.  Champlain  Trans.  Co., 
23  Vt.  186  (1851);   Hale  V.  N.  J.  Steam  Nav.  Co.,  15  Conn.  539  (1843). 

=»  Chicago  &  N.  W.  R.  Co.  v.  Merrill,  48  111.  425  (1868). 


234  THE    MODERN    LAW    OF    CARRIERS. 

contracts  which  purport  to  exempt  the  carrier  from  liabil- 
ity for  the  negligence  of  its  servants.  But  in  England 
and  in  those  States  which  admit  the  validity  of  such  con- 
tracts, the  question  has  been  frequently  considered, 
whether  it  was  the  intention  of  the  particular  clause  under 
consideration,  to  exempt  the  carrier  from  liability,  either 
for  an  intentional  or  willful  act  or  for  negligence  on  the 
part  of  its  servants.  In  those  States  it  is  well  settled  that 
the  "  contract  will  not  be  deemed  to  except  losses  occa- 
sioned by  the  carrier's  negligence  unless  that  be  expressly 
stipulated."  ^ 

The  English  courts  state  this  rule  of  construction  sub- 
stantially in  the  form  in  which  it  is  laid  down  in  America. 
But  in  the  application  of  the  rule  there  is  a  difference 
between  the  courts  of  the  two  countries.  If  the  language 
of  the  bill  of  lading  is  so  general  as  in  terms  to  exclude 
^'  all  risks,"  of  whatever  kind,  a  loss  from  negligence  is 
held  in  England  to  be  included,  although  a  loss  from  neg- 
ligence be  not  specified.'^ 

^  The  quotation  in  the  text  is  from  Magnin  v.  Dinsmore,  56  N.  Y, 
168  (1874).  In  Mynard  v.  Syracuse,  B.  &  N.  Y.  R.  R.,  71  N.  Y.  180 
(1877),  revg.  s.  c  7  Hun,  399  (1876),  the  contract  under  consideration 
purported  to  release  the  carrier  from  all  claims  for  injury  to  the  stock 
transported  "from  whatsoever  acts  arising."  The  Court  held  that  this 
general  language  was  not  sufficient  to  include  a  loss  occasioned  by  the 
negligence  of  the  carrier's  servants.  To  the  same  effect  are  Steinweg 
V.  Erie  R.  Co.,  43  N.  Y.  123  (1870);  Wells  v.  Steam  Nav.  Co.,  8  N.  Y. 
375  (1853);  Nicholas  v.  N.  Y.  Central  &  H.  R.  R.  R.,  89  N.  Y.  370 
(1882);  Holsapple  v.  Rome,  W.  &  O.  R.  R.,  86  N.Y.  275  (1881);  Schief- 
felin  V.  Harvey,  6  Johns.  178  (1810). 

The  language  of  Nelson,  J.,  in  New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  (U.  S.)  344  (1848),  is  to  the  same  effect.  See 
The  New  Orleans,  28  Fed.  Rep.  44  (1885). 

The  words  "  at  owner's  risk"  will  not  be  held  to  exempt  the  carrier 
from  liability  for  loss  caused  by  negligence.  Canfield  v.  Baltimore  & 
O.  R.  R.,  93  N.  Y.  532  (1883);  Alexander  v.  Greene,  7  Hill  (N.  Y.), 
533  (1844);  Baltimore  &  Ohio  R.  R.  v.  Rathbone,  i  VV.  Va.  87  (1865); 
Western  &  A.  R.  Co.  v.  Exposition  Cotton  Mills  (Ga. ),  7  S.  E.  Rep. 
916  (1888). 

^  The  general  rule  of  construction  stated  in  the  text  is  supported  by 
Hayn  v.  Cullifor,  3  C.  P.  Div.  410  (1878);  s.  c.  on  appeal,  4  C.  P.  Div. 
182   (1879);    Chartered  Merc.  Bk.  of  India  z^.  Netherlands  India  S.  N. 


CONSTRUCTION   NEGLIGENCE   CONTRACTS.  235 

A  clause  exempting  the  carrier  from  liability  for  loss 
by  fire  does  not  cover  the  case  of  a  loss  from  fire,  occa- 
sioned by  negligence  of  the  carrier's  servants,  or  his  fail- 
ure to  provide  reasonable  precautions  against  danger, 
unless  the  intention  to  provide  for  such  exemption  appears 
distinctly  in  the  contract/ 

Where  a  loss  occurs  from  an  excepted  risk,  but  the 
negligence  of  the  carrier  or  his  breach  of  contract  con- 
tributes to  the  loss,  the  question  has  frequently  been 
raised  whether  the  carrier  is  entitled  to  the  benefit  of  the 
limitations  of  liability  contained  in  the  bill  of  lading. 
The  decisions  on  this  subject  are  not  uniform.  In  New 
York,  where  the  bill  of  lading  exempted  the  carrier  from 
liability  for  loss  by  fire,  it  was  held  that  he  was  liable  for 
destruction,  caused  by  fire  which  consumed  the  goods  while 
awaiting  transportation,  because  the  omission  to  transport 
was  attributable  to  the  carrier's  neglect  to  provide  proper 
means  for  transportation.^  This  case  is  supported  by 
others  of  authority.^ 

Co.  (The  Kron  Prinz),  9  Qu.  B.  Div.  118  (1882);  s.c,  reversed  in  part, 
10  lb.  521  (1883).  Its  application  by  the  English  courts  is  illustrated 
by  Austin  v.  Manchester  R.  Co.,  10  C.  B.  454  (1850);  Carr  z'.  Lan- 
cashire &  Yorkshire  R.  Co.,  7  Excheq.  707  (1852).  In  this  latter 
case  the  language  of  the  contract  was,  "subject  to  the  owner's  taking 
all  risk  of  conveyance  whatsoever,  as  the  company  will  not  be  respon- 
sible for  any  injury  or  damage  (however  caused)."  It  was  held  that  the 
carrier  was  not  liable  for  a  loss  caused  by  the  negligence  of  his  servants. 
Phillips  V.  Edwards,  28  L.  J.  Excheq.  52  (1858);  Peek  v.  North  Staf- 
fordshire R.  Co.,  10  House  of  Lords  Cases,  473,  499,  511  (1862). 

Since  the  passage  of  the  English  statute  authorizing  the  courts  to 
determine  what  clauses  in  contracts  for  conveyance  by  land  are  unrea- 
sonable, the  courts  have  held  that  general  clauses  of  exemption  like 
these  in  such  contracts  are  unreasonable.  McManus  v-  Lancashire 
R.  Co.,  4  H.  &  N.  327  (1859);  Gregory  v.  West  Midland  R.  Co.,  33  L. 
J.  Excheq.  155  (1864). 

1  Erie  R.  Co.  v.  Lockwood,  28  Ohio  St.  358  (1876);  U.  S.  Express 
Co.  V.  Backman,  Ibid,  144  (1875);  Gaines  ?'.  Union  Trans.  Co.,  Ibid, 
418  (1876);  Chicago,  St.  L.  &  N.  O.  R.  R.  v.  Moss,  60  Miss.  1003  (1883); 
Montgomery  &  W.  P.  R.  R.  v.  Edmonds,  41  Ala.  667  (1868);  New 
Orleans,  St.  L.  &  C.  R.  R.  v.  Faler,  58  Miss.  911  (1875). 

^  Condict  V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500  (1873);  see  s.  c,  4 
Lansing  106  (1871). 

=»  McDaniel  v.  Chicago  &  N.  VV.  R.  Co.,  24  Iowa,  412  (1868).     In 


236         THE  MODERN  LAW  OF  CARRIERS. 

So,  it  is  well  settled  that  if  the  carrier  does  not  for- 
ward the  goods  by  the  conveyance  named  in  the  bill  of 
lading,  or  by  the  ordinary  route,  he  is  liable  for  a  loss, 
although  it  occur  from  an  excepted  peril.^ 

Where  the  contract  is  to  transport  "all  rail,"  these 
words  should  receive  a  reasonable  construction.  The 
carrying  of  goods  in  the  ordinary  cars  of  the  railroad, 
from  the  terminus  of  the  railroad  over  a  ferry  would  not 
be  a  violation  of  such  stipulation.  But  if  the  carrier 
under  such  a  contract,  without  necessity,  transports  the 
goods  over  a  part  of  the  route  by  water,  even  though  such 
transportation  be  common,  and  over  one  of  his  regular 
routes,  he  loses  the  benefit  of  the  limitation.  This  was 
held  in  a  case  where  the  contract  was  made  at  one  end 
of  a  route  formed  of  several  connecting  lines,  and  the  car- 
rier at  the  other  end  transported  the  goods  in  his  usual 
way  for  20  miles  by  water — from  Perth  Amboy  to  New 
York.  The  goods  were  destroyed  by  fire  before  delivery 
at  the  latter  place.     The  contract  exempted  the  carrier 

this  case  the  immediate  cause  of  the  injury  was  defective  cars.  Whit- 
worth  V.  Erie  R.  Co.,  45  N.  Y.  Superior  Ct.  602  (1879);  Michaels  v.  N. 
Y.  Central  R.  R.,  30  N.  Y.  564  (1864);  Bostwick  v.  Baltimore  &  Ohio 
R.  R.,  45  N.  Y.  712  (1871);  Heyl  v.  Inman  S.  S.  Co.,  14  Hun  (N.  Y.), 
564  (1878).  This  was  a  case  of  loss  by  fermentation.  Dunson  v.  New 
York  Central  R.  R.,  3  Lans.  (N.  Y.)  265  (1870),  and  Read  z;.  Spaulding, 
30  N.  Y.  630  (1864),  were  cases  of  loss  by  a  flood.  Wing  v-  New  York 
&  Erie  R.  R.,  i  Hilton,  235  (1856),  was  a  case  of  damage  by  freezing. 
So  was  The  Aline,  25  Fed.  Rep.  562  (1885);  affg.  s.  c  19  Fed.  Rep. 
875  (1883).  So  was  Siordet  v.  Hall,  4  Bing.  607  (1828).  New  Bruns- 
wick Steamboat  Co.  v.  Tiers,  24  N.  J.  Law,  697  (1853),  was  a  case  of 
loss  by  a  storm.  Campbell  v.  Morse,  i  Harper  Law  (S.  C),  468  (1824), 
was  a  case  of  loss  by  flood.  In  all  these  cases,  though  the  immediate 
cause  of  the  injury  or  loss  was  an  excepted  peril,  it  was  held  that  the 
carrier  was  liable,  because  his  negligence  contributed  to  the  result. 

*  Express  Co.  v.  Kountze,  8  Wall.  342  (1869).  In  this  case  the  loss 
was  by  capture.  The  carrier  had  a  route  by  which  the  goods  might 
have  been  forwarded  and  which  was  safe.  Held,  the  carrier  was  liable. 
Marckwald  v.  Oceanic  Steam.  Nav.  Co.,  11  Hun  (N.  Y.),  462  (1877); 
Goddard  v.  Mallory,  52  Barb.  (N.  Y.)  87  (1868);  Merchants'  Despatch 
Trans.  Co.  v.  Kahn,  76  111.  520  (1S75);  Hand  v.  Baynes,  4  Whart.  (Pa.) 
204  (1838);  Lamb  v.  Camden  &  Amboy  R.  R.,  2  Daly  (N.  Y.),  454 
(1869);  Simon  v.  The  Fung  Shuey,  21  La  Ann,  363  (1869). 


CONSTRUCTION    NEGLIGENCE   CONTRACTS.  237 

from  liability  for  loss  by  fire.  It  was  nevertheless  Held 
that  lie  was  liable.^ 

The  Supreme  Court  of  the  United  States,  and  also 
that  of  Massachusetts,  has  declared  a  somewhat  different 
rule.  Those  courts  cited  the  maxim  familiar  in  insurance 
law,  causa  proxima^  non  7'eviota^  spectatur^  and  held  the 
carrier  not  liable  if  the  immediate  cause  of  the  loss  was  a 
peril  for  which  the  carrier  was  not  liable,  although  delay 
on  the  carrier's  part  brought  the  goods  into  the  place  and 
time  at  which  the  peril  occurred.^ 

If  the  carrier  has  good  reason  for  declining  to  receive 
goods  or  passengers,  he  should  state  it  at  the  time  the 
application  for  transportation  is  made.  If  not  stated  then 
he  cannot  set  it  up  afterwards."^ 


1  Mnghee  v.  Camden  &:  Amboy  R.  R.,  45  N.  Y.  514  (1871). 

^  Railroad  Co.  v-  Reeves,  10  Wall.  176  (1869);  Hoadley  z/.  North- 
ern Trans.  Co.,  115  Mass.  304  (1874);  Denny  v.  New  York  Central  R. 
R.,  13  Gray  (Mass.),  481  (1859);  Morrison  v.  Davis,  20  Penn.  171 
(1852).  See  another  case  where  this  maxim  was  applied  to  the  liability 
of  a  carrier  for  injuries  caused  directly  by  a  storm  but  remotely  by  his 
negligence:  Gillespie  v.  St.  Louis,  Kansas  City  &  N.  R.  R.,  6  Mo.  App. 
554  (1879).  No  doubt  these  cases  are  supptirted  by  analogous  decisions 
in  reference  to  contracts  of  a  different  species.  But  they  appear  to 
overlook  the  well-established  policy  of  the  law  to  confine  within  the 
narrowest  limits  exemptions  fur  losses  by  negligence  or  omission  of  duty. 

In  the  recent  case  of  Fox  v.  Boston  &  Me.  R.  R.,  1  Lawyers'  Rep. 
702  (Supreme  Court,  Mass.),  the  loss  occurred  by  freezing.  If  the 
apples  had  been  forwarded  without  delay  they  would  not  have  been 
frozen.  The  court  held  the  carrier  liable,  and  distinguished  the  case 
from  the  Denny  and  Hoadley  cases  thus:  "In  each  of  these  cases,  the 
loss  to  ihe  plaintiff  was  caused  by  an  extraordinary  event,  a  fire  and  a 
freshet;  and  the  Court  held  that  the  defendants,  although  guilty  of 
negligent  delay,  were  not  responsible,  because  the  event  was  not  one 
which  would  reasonably  be  anticipated.  In  the  case  at  bar  the  event 
which  caused  the  loss  was  contemplated  by  the  parties  when  they  made 
their  contract,  as  a  probable  consequence  of  the  breach  of  it." 

In  the  Reeves  case,  cited  in  this  note,  the  connection  of  the  negli- 
gence of  the  carrier  with  the  loss  was  very  remote.  The  general  doc- 
trine in  the  Federal  courts  is  the  same  as  that  of  the  cases  cited  in  notes 
4  and  5.  See  cases  cited  Chap.  XIV.  sect.  6,  note  2;  sect.  7,  notes  i,  2; 
sect.  8,  notes  3,  5,  6. 

=»  Hannibal  R.  R.  v.  Swift,  12  Wall.  262  (1870);  Phelps  v.  111.  Cent. 
R.  R.,  94  111.  556  (1880). 


238  THE   MODERN    LAW   OF    CARRIERS. 

When  the  language  of  the  contract  was  that  "  the 
company  would  not  be  responsible  for  articles  conveyed 
upon  its  road,  unless,"  &c.,  it  was  held  that  this  limita- 
tion applied  only  to  the  transportation,  and  did  not  limit 
the  carrier's  liability  for  injuries  to  the  goods  while  in  his 
possession  waiting  to  be  transported.^ 

Like  all  other  contracts,  the  carrier's  contract  with  the 
shipper  must  be  construed  as  a  whole,  and  effect,  if  pos- 
sible, be  given  to  every  clause.'^ 

Contracts  with  carriers  are  generally  drawn  by  the 
carrier  himself,  and  should,  therefore,  be  construed  strictly 
as  against  him.^ 

1  Detroit  &  Milwaukee  R.  R.  v.  Adams,  15  Mich.  458  (1867). 

^  In  Sisson  v.  Cleveland  &  Toledo  R.  R.,  14  Mich.  489  (1866),  the 
language  of  a  subsequent  clause  of  the  contract  was  held  to  limit  that 
of  a  prior  clause.  The  first  provided  that  the  owner  of  the  live  stock 
transported  should  assume  "  all  and  every  risk  of  injuries  which  the 
animals,  or  either  of  them,  may  receive,"  &c.,  and  "  risk  of  any  loss  or 
damage  which  may  be  sustained  by  reason  of  any  delay  or  from  any 
other  cause  or  thing,  in  or  incident  to  or  from  or  in  loading  or  unload- 
ing the  stock."  It  was  held  that  the  limitation  applied  wholly  to 
injuries  to  the  stock  caused  by  delay  and  not  to  injury  done  the  owner 
by  the  delay  which  occurred  and  which  brought  the  stock  to  market 
after  prices  had  declined. 

^  Hooper  v.  Wells,  27  Cal.  11  (1864).  Sawyer,  J.,  at  p.  27,  said: 
"  The  language  must  be  taken  most  strongly  against  the  defendants. 
.  .  .  The  instrument  is  executed  by  them  alone.  It  was  drawn  up 
with  care,  in  language  selected  by  themselves,  the  blank  form  having 
been  printed  in  advance  ready  to  be  presented  to  all  persons  offering 
property  for  transportatien  by  their  express.  The  restrictions  were  for 
their  benefit."  Cream  City  R.  R.  v.  Chicago,  M  &  St.  P.  R.  Co  ,  63 
Wis.  93  (1885). 

In  Keeley  v.  Boston  &  Me.  R.  R.,  67  Maine,  163  (1878),  the  con- 
tract was  construed  strictly  against  the  passenger.  It  was  held  that  a 
ticket  from  Portland  to  Boston  meant  precisely  what  it  said  and  would 
not  authorize  the  holder  to  ride  the  reverse  wav.  See  Downs  v.  N.  Y.  & 
N.  H.  R.  P.,  36  Conn.  287  (1869). 


CHAPTER  XI. 

USAGE    OF    BUSINESS. 


SECTION    I. 

EFFECT   OF  THE  CARRIER'S  USAGE,  WITH  ESPECIAL  REFERENCE 
TO  THE  QUESTION  OF  NOTICE  TO  THE  SHIPPER. 

Kvidence  of  uniform  usage  in  the  transaction  of  busi- 
ness between  carrier  and  shipper  is  material  in  one  of  two 
ways : 

1.  As  bearing  on  the  question  of  actual  notice  to  the 
shipper,  and  of  assent  by  him  to  the  transportation  of  his 
goods  in  accordance  with  the  usage. 

2.  As  establishing  a  reasonable  regulation  for  the  con- 
duct of  the  carrier's  business,  pursuant  to  which  it  may 
be  done,  on  the  whole,  with  greater  facility  and  conven- 
ience both  to  the  public  and  carrier,  whose  real  interests 
will,  in  the  end,  always  be  identical,  however  diverse  they 
may  appear  upon  a  superficial  view. 

The  general  rule  is  that  custom  cannot  be  set  up  to 
contradict  the  agreement  contained  in  the  bill  of  lading. 
For  example :  it  was  held  that  a  carrier  who  agreed  to 
transport  freight  from  San  Francisco  to  New  York  via 
Panama,  could  not  show  the  existence  of  a  custom  that 
the  carrier  should  not  be  liable  for  loss  on  the  Isthmus.^ 

*  Simmons  v.  Law,  4  Abb.  Ct.  App.  (N.  Y.)  241  (1866).  In  this  case 
the  bill  of  lading  provided  against  perils  of  ''navigation,  land  carriage, 
&c.,"  and  the  carrier  endeavored  to  support  the  exception  by  showing 
that  it  was  the  custom  of  the  trade  for  shippers  to  assume  all  the  risk  of 
transportation  of  gold  across  the  Isthmus.  Held  that,  as  against  the 
positive  agreement  to  deliver  safely  in  New  York,  evidence  of  such  cus- 


240  THE   MODERN   LAW   OF   CARRIERS. 

Evidence  of  the  usage  of  business  is  always  admissible 
to  explain  the  meaning  of  ambiguous  terms  in  a  bill  of 
lading/ 

Usage  cannot  add  to  a  contract  an  independent  clause. 
If  there  be  an  express  contract  for  the  carriage  of  goods, 
which  contains  no  clause  exempting  the  carrier  from  lia- 
bility for  the  loss  in  question,  evidence  is  not  admissible 
that  a  clause  providing  for  such  exemption  is  usual  in  the 
carrier's  bill  of  lading.^ 

When  no  express  contract  is  made,  the  same  rule  ap- 
plies to  the  contract  implied  by  law  from  delivery  of 
goods  to  a  carrier  for  transportation.^  Proof  of  the  usage 
of  the  carrier  in  the  conduct  of  its  business  is  not,  of  it- 
self, sufficient  in  any  case  to  exempt  the  carrier  from  lia- 
bility for  any  particular  species  of  injury  or  loss;  as,  for 
example,  loss  by  fire,^  or  by  overloading  a  vehicle.^ 

The  fact  that  the  shipper  has,  in  the  case  of  previous 
shipments,  accepted  from  the  carrier  bills  of  lading  con- 

tom  was  not  admissible,  even  under  this  somewhat  ambiguous  bill  of 
lading.  On  the  other  hand  it  has  been  held  that  a  usage  to  carry  pas- 
sengers' trunks  of  a  peculiar  construction,  containing  samples  of  mer- 
chandise, would  not  render  the  carrier  liable  for  the  merchandise  con- 
tained in  them.  And  see  p.  210,  n.  2,  ante.  Ailing  v.  Boston  &  Albany 
R.  R.,  126  Mass.  121  (1879). 

^  Balfour  v.  Wilkins,  5  Sawyer,  C.  C  429  (1879).  -^^  this  case  it  was 
also  held  that  evidence  of  the  facilities  for  loading  at  the  port  of  lading 
was  admissible  to  explain  the  language  of  the  bill  of  lading;  as,  for  in- 
stance, to  show  what  was  meant  by  "rainy  days."  See,  also,  Fabbri  v. 
Mercantile  Mutual  Ins.  Co.,  6  Lansing  (N.  Y.),  446  (1872);  Vose  v. 
Morton,  5  Gray  (Mass.),  594  (i'856);  Houghton  v.  Watertown  Fire  Ins. 
Co.,  131  Mass.  300  (1881). 

^  Clyde  z^.  Graver,  54  Penn.  251  (1867).  The  rule  which  excludes 
parol  evidence  to  vary  or  contradict  a  written  contract,  is  as  applicable 
to  carrier's  contracts  as  to  any  others.  Long  v.  New  York  C  R.  R.,  50 
N.Y.  76  (1872). 

3  McMillan  v.  Michigan  S.  cSr  N.  I.  R.  R.,  16  Mich.  79  (1867); 
Browning  v.  Long  Id.  R.  R.,  2  Daly  (N.  Y.),  117  (1867). 

*  Coxe  V.  Heislev,  19  Penn.  243  (1852).  But  see  Patten  v.  Mc- 
Grath,  Dudley  (S.  C),  162  (1838);  Swindler  v.  HiUiard,  2  Rich.  Law 
(S.  C),  286  (1846),  and  Singleton  v.  HiUiard,  i  Strob.  (S.  C)  203 
(1847). 

^  Derwort  v.  Loomer,  21  Conn.  245  (1851). 


USAGE   OF   BUSINESS   NOTICE.  24 1 

taining  clauses  restricting  the  carrier's  liability,  affords 
no  ground  for  the  inference  that  when  no  bill  of  lading 
was  delivered  or  accepted  he  agreed  to  similar  limitations. 
The  inference  that  he  was  unwilling  to  agree  to  them  is 
at  least  equally  consistent  with  his  conduct  and  that  of 
the  carrier.^  But  evidence  of  usage  is  admissible  as  bear- 
ing on  the  question  of  assent  by  the  shipper  to  the  pro- 
posed limitation.^ 

It  has  been  very  much  debated  whether,  in  order  to 
make  the  usage  effectual  to  modify  or  restrict  the  carrier's 
liability  in  reference  to  the  delivery  of  goods  intrusted  to 

1  McMillan  v.  Michigan  S.  &  N.  I.  R.  R.,  16  Mich.  79,  iii  (1867). 
The  rule  that  "the  common-law  liability  of  a  common  carrier  is  not 
limited  by  a  general  notice  that  he  will  not  accept  or  carry  goods  ex- 
cept under  a  restricted  responsibility,  although  the  notice  is  known  to 
the  shipper  when  he  delivers  them  for  shipment,"  Kirkland  v.  Dins- 
more,  62  N.  Y.  171  (1875);  Bean  v.  Green,  3  Fairfield  (12  Me.),  422 
(1835),  ought,  on  principle,  to  decide  all  these  questions  that  have  been 
mooted  concerning  the  effect  of  the  carriers'  usage.  As  the  court  in 
Kirkland  v.  Dinsmore  well  said  (p.  175):  "It  is  presumed,  under  such 
circumstances,  that  the  shipper  delivers  the  goods  under  the  contract 
which  the  law  creates,  and  not  upon  the  terms  stated  in  the  notice." 
Hollister  v.  Nowlen,  19  Wend.  234  (1838);  Dorr  v.  N.  J.  S.  Nav.  Co., 
II  N.  Y.  485  (1854).     See  ante,  pp.  225,  230,  231. 

^  Cooper  V.  Berry,  21  Georgia,  526  (1857);  Hinkley  v.  N.  Y.  Central 
R.  R.,  3  Thomps.  &  Cook  (N.  Y.),  281  (1874);  Nevins  v.  Bay  State  S. 
B.  Co.,  4  Bosw.  225,  238  (1859),  per  Woodruff,  J. 

Cooper  V.  Berry  was  a  case  where  cotton  delivered  to  a  carrier  was 
burned.  The  evidence  tended  to  show  that,  by  the  usage  of  the  busi- 
ness, the  carrier  was  not  liable  for  loss  by  fire.  There  was  no  written 
contract  in  the  case,  and  the  court  held  that  a  contract  to  limit  the 
carrier's  liability  might  be  proved  by  the  acts  from  which  a  contract  is 
to  be  implied,  such  as  public  notice,  known  to  the  person  for  whom  he 
carries  that  he  will  not  be  answerable  for  loss  of  goods  committed  to 
his  care.  Any  other  acts  or  facts  from  which  such  a  contract  is  to  be 
implied  must  stand  on  the  same  footing.  Gibbon  v.  Paynton,  4  Burr. 
2298  (1769);  Hyde  agst.  Trent  &  Mersey  Nav.  Co.,  5  Term  Rep.  389 
(1793);  Angell  on  Carriers,  io6,  179,  301,  355. 

Browning  v.  L.  I.  R.  R.,  2  Daly,  117  (1867).  At  page  121  the  court 
say:  "This  general  obligation  (as  to  delivery  and  notice  to  the  con- 
signee) may  be  varied  by  an  express  contract  between  the  parties;  or  a 
uniform  and  well-known  usage  may  be  shown,  establishing  a  mode  of 
delivery  in  certain  cases  or  at  particular  places,  in  conformity  with 
which  the  parties  may  be  presumed  to  have  contracted."  Gibson  v. 
Culver,  17  Wend.  305  (1837). 
16 


242  THE   MODERN   LAW   OF   CARRIERS. 

him,  it  is  necessary  to  prove  that  the  consignee  had  notice 
of  such  usage.  On  the  one  hand  some  courts  have  held 
that  the  consignee  or  owner  of  the  goods  is  bound  to  ac- 
quaint himself  with  the  usages  of  business  of  the  carrier 
with  whom  he  deals,  and  is  bound  to  take  notice  of  them 
and  act  in  accordance  with  them.^  And  it  has  even  been 
held  that  a  reasonable  regulation  of  a  railroad  company 
as  to  the  transportation  of  passengers — to  wit,  requiring 
the  trip  to  be  continuous — w^as  binding  on  a  passenger,  al- 
though he  had  no  notice  of  it,  and  the  usage  had  been  to 
disregard  it.^  And  it  is  held  that  passengers  are  bound 
to  enquire  and  take  notice  at  what  stations  a  particular 
train  usually  stops. ^ 

On  the  other  hand  it  has  been  held  in  numerous  cases 
that  a  usage  is  of  no  effect  to  limit  the  carrier's  liability 
unless  notice  of  it  is  brought  home  to  the  shipper  or  own- 
er of  the  goods  in  question.^     Notice  of  such  a  usage 

1  Farmers'  &  Mechanics'  Bank  v.  Champlain  Trans.  Co.,  i8  Ver- 
mont, 131  (1846);  s.  c.  23  Vt.  186  (1851);  Beebe  v.  Ayres,  28  Barb.  (N. 
Y.)  275  (1858).  ... 

2  Johnson  v.  Concord  R.  R.,  46  N.  H.  213  (1865).  But  this  decision 
would  seem,  on  principle,  indefensible.  The  power  that  makes  a  rule 
can  change  it.  To  suffer  it  to  become  obsolete  is  practically  to  change 
or  repeal  it.  And  a  carrier,  having  thus  dealt  with  its  own  rules,  ought 
not  to  be  allowed  suddenly  to  revive  them.  This  would  make  them  a 
trap  to  the  unwary,  rather  than  a  source  of  safety  to  the  public.  The 
Supreme  Court  of  Louisiana  held  the  reverse  in  Leisy  v.  Buyers,  2)^  La. 
Ann.  705  (1884).  Still  it  may  be  just  to  require,  as  the  Supreme  Court 
of  Iowa  did  in  O'Neill  v.  Keokuk  &  D.  M.  R.  Co.,  45  Iowa,  546  (1S77), 
that  some  evidence  should  be  given  that  this  customary  disregard  of  the 
rule  was  known  to  the  officer  charged  with  its  enforcement. 

'  Fink  V.  Albany  &  Susquehanna  R.  R.,  4  Lansing  (N.  Y.),  147 
(1871).     See  Chap.  VII,  sect.  11. 

*  Cantling  v.  Hannibal  &  St.  Joseph  R.  R.,  54  Mo.  385  (1873). 
(This  case  was  similar  to  Mayal  v.  B.  &  M.  R.  R.,  infra.)  Minter  v. 
Pacific  R.  R.,  41  Mo.  503  (1867);  Gleason  v.  Goodrich  Trans.  Co.,  32 
Wis.  85  (1873)- 

As  to  the  trains  on  which  passengers  may  ride,  see  Marony  v.  Old 
Colony  R.  Co.,  106  Mass.  153  (1870).  As  to  notice  to  the  consignee  of 
the  arrival  of  the  freight,  see  Judson  v.  Western  R.  R.,  6  Allen,  486 
(1863);  The  Mary  Washington,  i  Abb.  (U.  S.)  i;  s.  c.  Chase  Dec.  125 
(1865).  As  to  the  requirement  that  a  ticket  must  be  purchased  by  the 
passenger  on  a  freight  train,  where  the  rule  was  new  and  the  passenger 


USAGE   OF    BUSINESS    NOTICE.  243 

may,  perhaps,  be  implied  from  its  notoriety  and  long  con- 
tinuance/ And  the  weight  of  authority  is  that  if  proof 
is  not  given  of  actual  notice  of  the  usage  to  the  party 
sought  to  be  affected  by  it,  evidence  must  be  adduced  that 
it  has  been  so  uniform,  well  settled,  and  of  long  duration, 
that  it  may  reasonably  be  inferred  that  he  had  notice  of 
it."*^  In  other  words,  it  must  be  so  general  and  well  known 
that  the  court  may  fairly  presume  that  it  was  within  the 
contemplation  of  the  parties  when  the  contract  was  made, 
and  thus  formed  a  part  of  it.  Thus  it  was  held  that  a 
custom  on  the  part  of  a  carrier  by  rail,  to  deliver  to  a 
carter  those  goods  for  which  the  consignee  did  not  call, 
was  not  sufficient  to  impose  an  obligation  on  the  carrier 
to  deliver  at  the  consignee's  place  of  business.*^ 

had  been  in  the  habit  of  riding  without  a  ticket,  see  Lake  Shore  &  M. 
S.  R.  Co.  V.  Greenwood,  79  Penn.  373  (1875).  As  to  contracts  between 
the  carrier  and  one  of  its  agents,  by  which  the  latter  is  to  transport  a 
certain  class  of  goods,  and  be  alone  responsible  for  loss  or  injury  to 
them,  see  Mayall  v.  Boston  &  Maine  R.  R.,  19  N.  H.  122  (1848). 

^  See  St.  John  v.  Southern  Express  Co.,  i  Woods,  612  (187 1).  In 
this  case  the  que,-tion  was  considered,  but  not  definitely  decided. 

2  Duling  V.  Phil.,  W.  &  B.  R.  R.,  66  Md.  120;  5  Central  Rep.  570 
(1886).  In  this  case  a  passenger  sought  to  bind  a  railroad  company  by 
the  usage  of  its  ticket  agent,  and  the  rule  stated  in  the  text  was  applied. 
Illinois  Central  R.  R.  v.  Smyser,  38  111.  354  (1865);  Bissell  v.  Price,  16 
111.  408  (1855);  Macklin  v.  New  Jersey  S.  Co.,  7  Abb.  Pr.  N.  S.  229 
(1869);  Cooper  V.  Berry,  21  Geo.  526  (1857).  The  same  rule  was  ap- 
plied in  a  case  where  it  was  sought  to  prove  a  usage  as  to  the  meaning 
of  words  in  a  contract.     Miller  v.  Burke,  68  N.  Y.  615  (1877). 

^  Cahn  V.  Michigan  Central  R.  R.,  71  111.  96  (1873).  An  illustration 
of  this  rule  is  to  be  found  in  the  case  of  Wiltse  v.  Barnes,  46  Iowa,  210 
(1877).  The  court  in  that  case  treat  a  usage  of  the  carrier  as  to  deliv- 
ery, known  to  the  consignor,  as  a  part  of  the  contract  and  equivalent  to 
a  direction  from  the  consignor  to  follow  such  usage.  It  was  to  require 
prepayment  of  the  charge  for  transportation  before  the  consignee  should 
be  allowed  to  examine  the  goods.  He  refused  to  make  such  prepay- 
ment, and  the  goods  were  consequently  returned  to  consignor.  It  was 
held  that  the  consignee  had  no  right  of  action  against  the  carrier  for 
the  refusal  to  deliver.     {Post,  pp.  244,  245). 

The  contradiction  between  the  cases  as  to  whether  proof  must  be 
made  of  actual  notice  to  the  shipper  or  passenger  of  the  existence  of  a 
usage,  may  be  explained  by  a  reference  to  the  nature  of  the  rule  which 
may  be  under  consideration.     A  rule  may  be  reasonable  if  notified  to 


244        THE  MODERN  LAW  OF  CARRIERS. 

SECTION  II. 

USAGE  AS  REGULATING  THE  CARRIER'S  MODE  OF   TRANSACTING 

BUSINESS. 

There  are  some  matters  relating  to  and  modifying  the 
carrier's  common  law  liability,  which  in  the  absence  of 
express  contract  are  determined  by  the  usage  of  the  busi- 
ness. One  of  these  is  the  manner  of  delivery  of  the  goods 
intrusted  to  him.  It  is  well  settled  that  this  should  be 
according  to  the  usages  of  the  place  where  the  delivery  is 
to  be  made,  or  the  usual  exigencies  of  business  there.^ 

These  usages  in  reference  to  the  manner  in  which  de- 
livery should  be  made  are  binding  upon  both  parties  and 
may  be  shown  by  either,^  For  example,  where  it  was  the 
usage  that  vessels  bound  to  the  port  of  Cleveland  should 
deliver  their  cargoes  at  an  elevator,  each  vessel  awaiting 
its  turn,  the  Court  held  that  this  usage  formed  a  part  of 
the  contract,  and  that  the  carrier  was  responsible  for  injury 
to  the  goods  which  occurred  while  the  vessel  was  waiting 
its  turn,  and  could  not  recover  demurrage  for  dela}-  caused 
by  such  injury.'^     In  another  elevator  case,  however,  the 

the  passenger,  which  he  would  not  be  bound  to  inquire  for  or  expect. 
On  the  other  hand  there  are  some  matters  on  which  shippers  and  pas- 
sengers are  bound  to  inform  themselves,  as,  for  example,  where  a  par- 
ticular train  will  stop.     Ante,  Chap.  VII,  sect.  ii. 

^  Richmond  v.  Union  Steamboat  Co.,  87  N.  Y.  240  (1881); 
Homesly  v.  Elias,  66  N.  C  330  (1872);  Adams  Ex.  Co.  v.  Darnell,  31 
Ind.  20  (1869);  Salter  v.  Kirkbride,  4  N.  J.  Law  Rep.  223  (1818);  Mc- 
Masters  v.  Penn,  R.  R.,69  Penn.  374  (1871);/^^-/,  Chap.  XIV,  sect.  8.  ' 

2  The  Tybee,  i  Woods,  358  (1870);  Hooper  v.  Chicago  &  N.  W.  R. 
Co.,  27  Wis.  81  (1870);  Whitehouse  v.  Halstead,  90  III.  95  (1878); 
Hodgdon  z'.  N.  Y.  New  Haven  &  H.  R.  R.,  46  Conn.  277  (1878).  In 
New  Orleans,  J.  &  G.  N.  R.  R.  v.  Hurst,  36  Miss.  660  (1859),  '^^  "^^^ 
held  that  a  usage  as  to  the  place  at  which  a  particular  train  should  stop 
was  binding  upon  the  carrier.  But  delivery  to  the  holder  of  the  invoice 
is  not  justified  by  a  previous  course  of  dealing  between  him  and  the 
carrier,  unknown  to  the  shipper,  the  bill  of  lading  being  to  the  order  of 
the  latter.  Penn.  R.  Co.  v.  Stern,  119  Penn.  24  (1888);  Weyand  z'. 
Atchinson,  T.  &  S.  F.  R.  Co.,  39  N.  W.  Rep.  (Iowa),  899  (1888);  North 
Penn.  R.  R.  v-  Commercial  Bk.  of  Chic,  123  U.  S.  727  (1887). 

^  The  Glover,  i  Brown  Adm.  166  (1872). 


USAGE   OF   BUSINESS.  245 

Court  held  that  a  custom  to  moor  along  side  an  elevator 
barges  containing  cargo  consigned  to  its  owner,  leaving 
him  to  take  care  of  them,  would  not  relieve  the  carrier,  nor 
justify  the  Court  in  finding  that  there  had  been  a  delivery 
to  the  consignee.^ 

The  rule  already  stated  as  to  the  effect  of  the  usage  at 
the  port  of  delivery  has  been  applied  to  the  delivery  by  a 
carrier  to  the  next  connecting  line.  The  customary 
method  of  forwarding  the  goods  from  the  terminus  of  the 
first  carrier's  line  is  presumed  to  have  entered  into  and 
formed  part  of  the  contract,'^  But  a  mere  practice  estab- 
lished by  a  carrier  for  its  own  convenience,  in  reference  to 
delivering  goods  to  a  connecting  line,  will  not  excuse 
delay  on  the  part  of  the  carrier  in  forwarding  the  goods, 
although  justified  by  the  custom.'^ 

The  custom  in  reference  to  the  part  of  the  vessel  on 
which  goods  of  a  particular  kind  are  to  be  stowed  is  bind- 
ing upon  both  parties."^     The  usage  of  business  as  to  the 

\  Germania  Ins.  Co.  v.  La  Crosse  &  Minn.  Packet  Co.,  3  Bissell, 
501  {1873).  The  carrier  in  this  case  was  a  tug,  and  moored  her  tow- 
while  a  gale  was  raging,  which  caused  the  damage. 

^  The  Convoy's  Wheat,  3  Wallace,  225  (1865);  Simpkins  v.  Norwich 
&  N.  L.  Steamboat  Co.,  11  Cushing,  102  (Mass.)  (1853);  Van  Santvoord 
V.  St.  John,  6  Hill  (N.  Y.),  157  (1843),  revg.  s.  c,  25  Wend.  660  (1841); 
Mich.  Cent.  R.  R.  v.  Curtis,  80  111.  324(1875).  For  example,  where  a 
carrier  by  rail  received  goods  for  transportation  to  Albany,  there  to  be 
delivered  to  the  People's  line  of  steamboats  for  transportation  to  New 
York,  and  the  People's  line  refused  to  take  the  goods,  and  the  carrier 
thereupon  delivered  them  to  another  line,  to  which  such  goods  were 
customarily  delivered,  it  was  held  that  this  was  a  good  delivery  and 
relieved  the  carrier  from  further  responsibility.  Johnson  v.  N.  Y.  Cen- 
tral R.  R.,  31  Barb.  (N.  Y.)  196  (1857). 

^  Lawrence  i'.  Winona  &  St.  Peter  R.  R.,  15  Minn.  390  (1870). 
This  decision  is  sustainable  on  the  ground  that  the  usage  under  which 
the  railroad  company  sought  to  excuse  its  delay  was  not  a  general  use, 
and  there  could  be  no  presumption  that  it  was  known  to  the  shipper,  or 
that  it  entered  into  the  contract  so  as  to  form  part  of  it. 

*  Baxter  v.  Leland,  i  Abb.  Adm.  348  (1848);  The  Colonel  Led- 
yard,  i  Sprague,  530  (i860).  In  The  Delaware,  14  Wallace,  579 
(187 1 ),  it  was  held  that  parol  evidence  of  the  shipper's  consent  that  his 
goods  might  be  carried   on  deck  was  inadmissible,  but  the  Court  ad- 


246  THE   MODERN    LAW   OF   CARRIERS. 

mode  or  time  of  transportation  is  binding  upon  the  par- 
ties.' This  statement  is  subject,  however,  to  the  limita- 
tion that  the  usage  must  not  be  in  conflict  with  the  car- 
rier s  obligation,  imposed  by  law,  or  created  by  contract.^ 
Evidence  of  usage  has  been  admitted  to  extend  or  am- 
plify the  language  of  the  bill  of  lading.^    It  may  regulate 

mitted  "that  where  there  is  a  well-known  usage  in  reference  to  a  partic- 
ular trade  to  carry  the  goods  as  convenience  may  require,  either  upon 
or  under  deck,  the  bill  of  lading  may  import  no  more  than  that  the 
cargo  shall  be  carried  in  the  usual  manner."  Sproat  v.  Donnell,  26  Me. 
185  (1846);  and  %tt  post^  Ch.  XIV,  sect.  8;  Lapham  v.  Atlas  Ins.  Co.,  24 
Pick.  (Mass.)  I  (1833) 

1  Cooper  V.  Kane,  19  Wend.  386  (1838);  Peet  v.  Chicago  &  N.  W. 
R.  R.,  20  Wis.  598  (1866);  Lowry  v.  Russell,  8  Pick.  (Mass.)  360  (1829); 
Sproat  V.  Donnell,  26  Me.  185  (1846);  Broadwell  v.  Butler,  i  Newb. 
Adm.  171;  6  McLean,  296  (1854);  see  Hatchell  v.  The  Compromise, 
12  La.  Ann.  783  (1857).  In  Tierney  v.  N.  Y.  Central  R.  R.,  76  N.  Y. 
305  (1879),  the  Court  say,  p.  314:  "The  freight  in  question  was  not 
only  perishable,  but  known  to  be  so  by  both  parties,  and  was  shipped 
as  such,  and  with  knowledge  on  the  plaintiff's  part  of  the  custom  of  the 
defendant  to  give  a  preference  in  transportation  of  such  goods,  and  the 
parties,  though  silent,  may  be  regarded  as  adopting  the  custom  as  part 
of  the  contract."  The  rule  stated  in  the  text  was  applied  to  a  case 
where  the  carrier's  custom  was  to  seal  valuable  packages,  and  its  omis- 
sion to  do  this  was  held  to  be  negligence.  Overland  Mail  &  Express 
Co.  V.  Carroll,  7  Col.  43  (1883). 

"  Coxe  V.  Heisley,  19  Penn.  243  (1852);  Missouri  Pac.  R.  Co.  v. 
Fagan  (Texas),  9  S.  W.  Rep.  749  (1888);  Leonard  v.  Fitchburg  R.  R., 
143  Mass.  307;  3  New  England  Rep.  342  (1887).  In  this  case  the 
Court  say:  "If  it  was  an  unsafe  method  of  transportation,  the  fact  that 
it  was  usual  with  the  defendant  cannot  exonerate  it  from  its  contract  to 
safely  transport,  and  its  own  usage  would  not' have  any  tendency  to 
show  that  it  had  adopted  a  safe  method."  The  contract  was  to  trans- 
port cattle,  and  the  defects  proved  were  insufficient  ventilation  and 
failure  to  nail  cleats  to  the  floor  of  the  car,  to  enable  cattle  to  maintain 
their  footing.  The  principle  stated  in  the  text  is  in  accordance  with 
the  general  law  as  to  all  customs — that  they  must  be  lawful.  In  Law- 
rence V.  Maxwell,  64  Barb.  102  (1872),  which  was  an  action  for  conver- 
sion of  stock,  the  court  said:  "A  long  continued  course  of  wrong  doing 
or  violation  of  law  will  never  prove  a  valid  custom  to  continue  it." 

?  Sullivan  %k  Thompson,  99  Mass.  259  (1868).  In  this  case  the  con- 
tract provided  that  the  goods  were  '"  to  be  forwarded  to  our  agency 
nearest  or  most  convenient  to  destination  only."  The  custom  of  the 
carrier  was  to  deliver  parcels  marked  with  a  particular  street,  number 
and  address,  at  the  place  of  such  address.  Held  that  the  carrier  was 
liable  for  a  failure  to  deliver  a  parcel  so  marked  according  to  his  custom, 
although  he  did  deliver  it  at  his  own  office  or  agency.     The  same  case, 


USAGE  OF  BUSINESS.  247 

the  manner  of  transportation  and  relieve  the  carrier  from 
liability  for  injuries  incidental  to  the  usual  method  of 
conveyance.  In  this  case  cotton  was  transported  in  open 
boats,  which  was  the  usual  and  only  available  way,  and 
was  injured  by  rain.  Held  that  the  carrier  was  not 
liable.^ 

The  strict  language  of  the  contract  will  be  adhered  to 
though  it  be  shown  that  in  some  previous  instances  the 
carrier  has  waived  compliance  with  the  requirement  in 
question.^  But  if  the  usual  course  of  dealing  between  the 
carrier  and  the  charterers  has  led  the  shipper  to  believe 
that  a  condition  in  the  printed  contract  of  charter-party 
would  not  be  insisted  upon,  it  has  been  held  that  the  car- 
rier cannot  interpose  it  as  a  defense.^ 

But  the  carrier  may  waive  the  benefit  of  a  regulation, 
established  by  itself,  e.g.^  that  it  will  only  receive  fruit  on 
certain  days.^ 

however,  sustained  the  validity  of  usage  regulating  the  method  of  deliv- 
ery. It  held  that  a  usage  to  deliver  parcels  to  the  clerk  of  the  con- 
signee, without  giving  personal  notice  to  the  latter,  was  reasonable,  in 
reference  to  parcels  of  ordinary  character  and  value.  But  custom  will 
not  require  a  carrier  to  deliver  at  the  usual  place,  if  there  be  good  rea- 
son for  his  not  doing  so.  Arnold  v.  National  S.  S.  Co.,  29  Fed.  Rep. 
184  (1886).  In  this  case  the  usage  was  not  universal,  and  the  "good 
reason  "  was  that  the  wharf  was  full.  The  bills  of  lading  merely  re- 
quired discharge  at  the  port  of  New  York,  but  it  is  well  settled  this 
means  at  a  wharf  or  pier.  It  is  easy  to  see  that  good  reasons  might 
arise  to  justify  a  carrier  in  not  landing  at  a  pier  where  he  had  always 
before  been  in  the  habit  of  landing.  For  a  further  consideration  of 
usage  as  affecting  delivery,  see  Chap.  XIV,  sect.  8,  post. 

^  Chevellier  ^z.  Patton,  10  Texas,  344  (1853);  Sproat  v.  Donnell,  26 
Me.  185  (1846);  The  William  Gillum,  2  Lowell,  154  (1872);  The  Dela- 
ware, 14  Wall,  579  (187 1);  contra,  The  Wellington,  i  Biss.  (U.  S.)  279 

(1859)- 

^  Keeleyz^.  Boston  &  Maine  R.R.,  67  Maine,  163  (1878);  ante,^.  163. 

'  Leisy  v.  Buyers,  36  La.  Ann.  705  (1884).  This  is  analogous  to  the 
well-settled  exception  to  the  rule  which  prohibits  the  introduction  of 
parol  evidence  to  contradict  or  vary  a  written  contract,  to  wit,  that  such 
evidence  is  admissible  when  the  suit  on  which  it  is  offered  is  not  be- 
tween the  parties  to  the  contract.  Tyson  v.  Post,  108  N.  Y.  217  (1888); 
Dempsey  v.  Kipp,  61  N.  Y.  462  (1875);   ^  Greenl.  Evid.,  sect.  279. 

*  Reed   v.  Philadelphia,  W.  &  B.  R.   R.,   3  Houston  (Del.),  176 


248  THE    MODERN    LAW   OF    CARRIERS. 

If  the  usage  of  business  or  tHe  regulations  made  by 
the  carrier  are  relied  upon  to  relieve  him  from  liability  he 
must  show  strict  compliance  with  them.^ 

The  usage  of  the  business  will  form  a  part  of  the  con- 
tract so  far  as  to  limit  the  class  of  goods  which  the  carrier 
holds  himself  out  to  carry.  A  man  may  be  a  common 
carrier  of  some  kinds  of  merchandise  only,  and  if  it  is  not 
his  custom  to  carry  other  kinds  he  is  not  liable  for  their 
loss,  should  they  be  entrusted  to  his  agents.  This  was 
held  in  reference  to  packages  of  money  entrusted  to  the 
of&cers  of  steamboats  for  transportation.^ 

But  if  it  be  his  custom  to  carry  money  packages  he  is 
liable  for  their  loss,  though  the  custom  was  to  carry  them 
without  compensation.^ 

Custom  also  may  be  shown  as  to  what  precautions  the 
carrier  should  take  against  danger  to  the  goods  which  are 


(1869).  All  the  cases  agree  that  the  usage  must  be  reasonable.  John- 
son V.  318  Tons  of  Coal,  44  Conn.  548  (1877),  is  a  curious  instance  of  a 
regulation  held  to  be  unreasonable,  to  wit,  that  parties  receiving  coal 
from  the  carrier's  cars  should  employ  shovellers  designated  by  the  car- 
rier and  at  wages  fixed  by  it. 

1  Angle  V.  Miss.  &  Mo.  R.  R.,  18  Iowa,  555  (1865). 

*  Whitmore  v.  The  Caroline,  20  Mo.  513  (1855);  Chouteau  v.  The 
"  St.  Anthony,"  16  Mo.  216  (1852);  Sewall  v.  Allen,  6  Wend.  335  (1830). 
The  legislature  may  prohibit  a  common  carrier  from  limiting  itself  to 
the  carriage  of  a  particular  kind  of  freight.  If  such  a  statute  be  in  ex- 
istence, a  custom  in  contravention  of  it,  e.  g.,  not  to  carry  blooded  live 
stock  except  upon  receiving  a  release  from  liability  for  damage,  is  void. 
McCune  v.  B.  C  R.  &  N.  R.  Co.,  52  Iowa,  600  (1879). 

^  Garey  v.  Meagher,  33  Ala.  630  (1859).  See  this  subject  more 
fully  treated  in  Chap.  IV,  sect.  4.  Hosea  v.  McCrory,  12  Ala.  349 
(1847).  Under  such  circumstances  a  delivery  to  the  clerk  is  a  delivery 
to  the  master  if  the  clerk  is  the  person  who  usually  receives  such  pack- 
ages of  money.  {Ibid.)  And  if  a  carrier  is  accustomed  to  carry  live 
stock  under  certain  conditions,  he  is  under  those  conditions  a  carrier  of 
live  stock,  and  bound  to  furnish  cars  and  receive  and  transport  them 
upon  receiving  reasonable  notice  to  do  so.  If  from  any  sudden  emerg- 
ency he  cannot  transport  the  stock,  he  is  bound  to  use  diligence  in  noti- 
fying any  person  giving  such  notice.  Ayres  v.  Chicago  «S:  N.  W.  R.  Co., 
37  N.  W.  Rep.  (Wis.)  432  (1888). 


USAGE   OF  BUSINESS.  249 

being  transported,  and  as  to  wliat  is  the  usual  method  of 
stowage.^ 

1  Chicago,  St.  L.  &  N.  O.  R.  R.  v.  Moss,  60  Miss.  1003  (1883); 
Lamb  v.  Parkman,  i  Sprague,  343  (1857).  But  if  the  manner  of  stow- 
age is  unsafe,  the  usage,  to  justify  the  carrier,  must  be  a  general  one. 
Leonard  v.  Fitchburg  R.  R.,  143  Mass.  307  (1886). 


CHAPTER    XII. 


SECTION    I. 
BURDEN  OF  PROOF  OF  THE  CONTRACT. 

The  burden  of  proof  is  a  question  tliat  sometimes  be- 
comes important  in  determining  whether  a  case  shall  be 
submitted  to  the  jury,  or  disposed  of  by  the  Court,  by  a 
non-suit  or  direction  to  find  a  verdict. 

It  is  clear  that  the  carrier  who  alleges  that  he  has 
made  a  contract  which  limits  his  common  law  liability 
must  establish  its  existence  and  terms  by  the  preponder- 
ance of  evidence.  The  burden  of  proof  in  such  cases  is 
upon  him.^ 


^  Western  Transp.  Co.  v.  Newhall,  24  111.  466  (i860);  Baltimore  & 
Ohio  R.  R.  V.  Brady,  32  Md.  333  (1S69);  Am.  Trans.  Co.  v.  Moore,  5 
Mich.  368  (1858);  Gaines  v.  Union  Trans.  &  Ins.  Co.,  28  Ohio  St.  418 
(1876);  Southern  Express  Co.  v.  Newby,  36  Geo.  635  (1867);  Verner  v. 
Sweitzer,  32  Penn.  208  (1858).  In  Gaines  v.  Union  Transportation  Co., 
28  Ohio,  418  (1876),  the  Court  state  the  rule  even  more  strongly  against 
the  carrier,  holding  that  where  the  action  against  the  carrier  is  to 
recover  on  his  common  law  liability,  for  losses  occurring  at  the  point  of 
delivery,  after  the  transit  is  ended,  but  before  notice  of  delivery  to  the 
consignee,  and  the  defendant  claims  exemption  from  such  loss  by  virtue 
of  a  condition  in  the  bill  of  lading  to  that  effect,  he  must  aver  and 
prove,  not  only  that  this  condition  was  assented  to,  but  that  the  loss 
happened  without  any  fault  or  neglect  on  his  part,  and  the  failure  to 
establish  such  assent  or  show  due  and  proper  care  to  prevent  the  loss 
entitles  the  plaintiff  to  recover.  Kallman  v.  U.  S.  Express  Co.,  3  Kans. 
205  (1865);  Adams  Express  Co.  v.  Guthrie,  9  Bush  (Ky.),  78  (1872). 

When  a  carrier  has  received  goods  marked  for  a  station  on  a  con- 
necting line  and  they  are  delivered  at  that  point  injured,  ^^w^?/-^,  whether 
that  IS  prima  facie  proof  of  the  carrier's  liability.  Irwin  v.  N.  Y.  Cen- 
tral R.  R.,  I  Thomps.  &  C  (N.  Y.),  473  (1873),  post,  p.  253,  n.  i.  In 
the  same  case,  the  question  is  considered  as  to  what  proof  will  rebut  the 
presumption  of  his  liability,  if  in  such  a  case  it  exists.  See  Chap.  XIII, 
sect.  3. 


BURDEN  OF  PROOF  OF  CONTRACT.        25 1 

The  contract  need  not  be  in  writing.^  An  examina- 
tion of  the  cases  cited  in  the  notes  to  this  section  will 
show  that  the  disposition  to  establish  more  rigid  rules  as 
to  the  proof  of  such  contracts  between  a  carrier  and 
shipper  than  would  be  applied  in  ordinary  cases  no  longer 
exists,  and  that  the  recent  authorities  apply  in  such  cases 
the  same  rules  that  govern  the  proof  of  ordinary  contracts. 
No  good  reason  is  perceived  for  a  distinction. 

If  the  carrier  makes  prima  facie  proof  of  a  contract 
limiting  his  liability,  and  there  is  nothing  in  the  circum- 
stances disclosed  by  the  evidence  indicating  a  want  of 
fairness  or  good  faith  in  the  making  of  the  contract,  the 
burden  of  proof  is  shifted,  and  it  is  for  the  shipper  to 
establish  that  it  was  obtained  by  duress  or  made  under  a 
mutual  mistake.'^     Where  the  shipper  himself  tenders  the 

1  Am.  Trans.  Co.  v.  Moore,  5  Mich.  368  (1858);  Roberts  v.  Riley, 
15  La.  Ann.  103  (i860). 

Roberts  v.  Riley  was  an  action  for  damages  occasioned  to  horses 
shipped  on  board  defendant's  steamboat.  The  defendant  pleaded  an 
agreement  between  the  parties,  that  the  horses  were  to  be  under  the 
exclusive  management  and  control  of  the  plaintiff  during  the  voyage. 
Parol  evidence  was  offered  to  prove  the  special  agreement.  The  Court 
held  that  in  the  absence  of  a  bill  of  lading  oral  evidence  was  properly 
admitted,  and  that  there  is  no  law  that  requires  a  contract  of  affreight- 
ment to  be  in  writing. 

In  the  American  Transportation  Co.  v.  Moore,  the  Court  say  that 
"although  it  devolves  upon  a  carrier  to  show  affirmatively  the  terms  of 
any  contract  which  lessens  his  common  law  liability,  yet  that  fact  is  to 
be  proved  like  any  other,  by  any  pertinent  evidence.  If  in  writing,  the 
writing  must  be  shown;  but  if  by  parol,  there  is  no  rule  which  requires 
different  proof  from  that  which  would  establish  any  other  contract." 
See  also  sect.  4,  post. 

2  Adams  Ex.  Co.  v.  Guthrie.  9  Bush  (Ky.),  78  (1872);  see  Louis- 
ville, C.  &  L.  R.  R.  V.  Hedger,  Ibid,  645  (1873).  In  Adams  Ex.  Co.  v. 
Guthrie,  the  Court  say  :  "  If  the  contract  was  actually  made,  it  is  bind- 
ing upon  both  parties,  and  appellee  cannot  escape  from  its  consequences, 
unless  it  appears  that  he  acted  under  duress,  or  that  it  was  imposed 
upon  him  or  his  agent  under  circumstances  which  probably  prevented 
them  from  examining  the  writing  and  understanding  its  nature.  Ordi- 
narily written  contracts  cannot  be  contradicted  or  essentially  modified 
by  oral  testimony  without  proof  of  fraud  or  mistake ;  and  it  would  be 
carrying  the  innovation,  made  upon  this  salutary  rule  in  this  class  of 
contracts,  to  a  most  unreasonable  extent  to  allow  the  shipper  to  avoid 


252  THE    MODERN    LAW    OF    CARRIERS. 

bill  of  lading  for  signature,  and  especially  where  the 
instrument  is  one  which  he  has  himself  caused  to  be 
printed,  the  evidence  is  conclusive  that  the  contract  was 
not  procured  by  duress.^ 

SECTION    II. 

BURDEN  OF  PROOF  OF  NEGLIGENCE  AND  LOSS. 

In  many  cases  the  question  of  burden  of  proof  of  neg- 
ligence and  of  loss  is  of  considerable  importance.  The 
loss  or  injury  for  which  compensation  is  sought  some- 
times happens  from  causes  which  it  is  difficult  to  trace. 
The  doctrine  which  on  the  whole  is  established  by  the 
preponderance  of  authority  is  this :  The  shipper  in  the 
first  instance  makes  out  his  case  by  proving  his  contract 
and  the  non-delivery  of  the  goods.  The  burden  of  proof 
is  then  on  the  carrier  to  bring  himself  within  the  exemp- 
tion clauses  of  the  bill  of  lading,  or,  in  other  words,  to 
show  that  the  loss  happened  by  one  of  the'excepted  perils. 
The  reason  is  obvious.  The  goods  were  in  his  custody, 
and  he  is  bound  like  all  other  bailees  to  account  for  their 
loss,  if  they  are  lost.^     The  rule  is  the  same  where  the 

them  on  account  of  duress,  misfortune,  delusion  or  failure  to  understand 
their  effect,  and  also  to  presume  the  existence  of  one  or  all  of  these 
grounds  of  avoidance  and  compel  the  carrier  by  proof  to  rebut  the  pre- 
sumption." 

^  Lawrence  v.  N.  Y.,  Prov.  &  Boston  R.  R.,  36  Conn.  6t,  (1869). 

"  Western  Transportation  Co.  v.  Downer,  11  Wall.  129  (1871); 
Hooper  v.  Rathbone,  Taney,  519  (1853);  Hunt  v.  The  Propeller  Cleve- 
land, 6  McLean,  76;  s.  c.  i  Newb.  Adm.  221  (1853);  Bazin  v.  Steam- 
ship Co.,  3  Wall.  Jr.  229  (1857);  Lewis  v.  Smith,  107  Mass.  334  (1871); 
Hill  V.  Sturgeon,  35  Mo.  212  (1864);  Lamb  v.  Camden  &  Amboy  R.  R. 
46  N.  Y.  271  (1871);  Newstadt  v.  Adams,  5  Duer  (N.  Y.),  43  (1855); 
American  Ex.  Co.  v.  Sands,  55  Penn.  140  (1867);  Adams  Ex.  Co.  v. 
Holmes,  8  Central  Rep.  (Penn.)  155  (1887);  Camden  &  Amboy  R.  R. 
V.  Baldauf,  16  Penn.  67  (1851);  Adams  Ex.  Co.  z*.  Stettaners,  61  111.  184 
(1871);  Atchinson,  Topeka  &  S.  F.  R.  R.  v.  Brewer,  20  Kansas,  669 
(1878)'.  In  this  case  the  demand  was  made  by  a  passenger  for  baggage 
for  which  he  held  a  check,  and  was  made  at  a  reasonable  time,  and  at 


BURDEN  OF  PROOF  OF  NEGLIGENCE  AND  LOSS.  253 

goods  are  delivered  in  a  damaged  condition.  The  carrier 
must  show  that  the  damage  was  caused  by  one  of  the 
excepted  causes  or  perils/  In  like  manner  where  the 
carrier  seeks  to  escape  liability  by  showing  a  delivery  to 


the  point  of  destination.  It  was  held  that  the  failure  to  produce  the 
baggage  under  such  circumstances  or  to  account  for  its  loss  raised  a 
presumption  of  negligence.  In  Penn.  R.  R.  v.  Miller,  87  Penn.  395 
(1878),  the  Court  held  that  failure  to  account  for  the  loss  raised  a  pre- 
sumption of  negligence,  which  was  not  repelled  by  general  proof  of 
ordinary  care  in  the  management  of  the  road.  In  this  case  the  loss  was 
by  fire.  So  proof  that  carboys  were  broken  while  the  car  containing 
them  was  being  switched,  does  not  rebut  the  presumption  of  negligence 
but  rather  tends  to  support  it.  Kirst  v.  Milwaukee,  L.  S.  &  W.  R.  Co. 
46  Wis.  489  {1879);  Alden  v.  Pearson,  3  Gray  (Mass.),  342  (1855) 
Adams  Ex.  Co.  v.  Stettaners,  61  111.  184  (1871);  Finn  v.  Timpson,  4  E 
D.  Smith  (N.  Y.),  276  (1855);  Hall  v.  Cheney,  36  N.  H.  26  (1857) 
Angle  V.  Miss.  &  M,  R.  R.,  18  Iowa,  555  (1865);  M'Call  z^.  Brock,  5 
Strob.  Law  (S.  C),  119  (1850);  Smyrl  v.  Niolon,  2  Bailey  (S.  C),  421 
(1831)- 

^  Clark  V.  Barnwell,  12  How.  (U.  S.)  272  (1851);  Rich  v.  Lambert, 
12  How.  (U.  S.)  347  (1851);  Tygert  Co.  v.  The  Charles  P.  Sinnickson, 
24  Fed.  Rep.  304  (1885);  Zerega  z'.  Poppe,  i  Abb.  Adm.  397  (1849); 
Bearse  v.  Ropes,  i  Sprague,  331  (1856);  The  Schooner  Emma  Johnson, 
I  Sprague,  527  (i860);  Hunt  v.  The  Propeller  Cleveland,  i  Newb. 
Adm.  221;  s.  c.  6  McT.ean,  76  (1853);  Mahon  z^.  Steamer  Olive  Branch, 
18  La.  Ann.  107  (1866);  Grogan  v.  Adams  Ex.  Co.,  114  Penn.  523;  s. 
c.  5  Cent.  Rep.  300  (1887);  American  Ex.  Co.  v.  Second  National  Bk., 
69  Penn.  394  (1871);  Arend  v.  Liverpool,  N.  Y.  &  P.  S.  S.  Co.,  6  Lans. 
(N.  Y.)  457  (1872).  And  where  a  vessel  takes  the  ground  while  at 
dock  in  a  storm,  the  burden  is  on  the  carrier  to  show  that  this  could  not 
have  been  foreseen  and  prevented.  Ewart  v.  Street,  2  Bailey  (S.  C), 
157  (1831).  But  when  the  carrier  has  shown  delivery  in  apparent  good 
condition  and  it  appears  afterwards  that  part  of  the  contents  has  been 
stolen,  the  burden  is  on  the  owner  to  prove  that  it  was  done  before 
delivery.  Canfield  v.  B.  &  O.  R.  R.,  75  N.  Y.  144  (1878);  s.  c.  gz  N. 
Y.  532(1883). 

A  box  which  has  been  through  the  hands  of  several  carriers  and 
found  opened  at  the  end  of  the  route,  may  be  presumed  to  have  been 
opened  in  the  hands  of  the  last  carrier.  Laughlin  v.  Chicago  &  N.  W. 
R.  Co.,  28  Wis.  204  (1871);  Shriver  v.  Sioux  City  &  St.  P.  R.  R.,  24 
Minn.  506  (1878). 

The  rule  is  thus  stated  in  Inman  v.  South  Carolina  R.  Co.,  129  U.  S. 
128  (1889):  "As  in  case  of  loss  the  presumption  is  against  the  carrier, 
and  no  attempt  was  made  here  to  rebut  that  presumption,  the  defend- 
ant's liability,  because  in  fault,  must  be  assumed  upon  the  evidence 
before  us." 


254  I'HE   MODERN   LAW   OF   CARRIERS. 

a  connecting  carrier,  he  must  prove  that  this  delivery  was 
pursuant  to  the  contract  of  affreightment.^ 

The  proof  on  the  part  of  the  carrier  must  be  clear  and 
explicit.  It  is  not  enough  for  him  to  show  that  the  loss 
might  have  occurred  by  one  of  the  excepted  perils.^  In  a 
case  in  which  this  rule  was  laid  down  with  as  much 
strictness  as  in  the  "  Compta  "  it  was,  however,  held  that 
the  mistake  of  a  light  made  by  the  captain  on  a  dark  and 
stormy  night  at  the  entrance  of  a  harbor,  which  was  difii- 
cult  of  access,  was  excusable.     It  was  shown  that  vigi- 


*  Schutter  v.  Adams  Ex.  Co.,  5  Mo.  App.  316  (1878). 

2  The  Ship  "Compta,"  4  Sawyer,  375  (1877);  The  Live  Yankee, 
Deady,  420  (1868).  In  the  Compta  the  damage  to  the  goods  was 
occasioned  by  leaks  in  the  ship's  deck.  The  defence  relied  on  was 
perils  of  the  sea.  The  Court  held  that  it  was  not  enough  for  the  carrier 
to  prove  the  occurrence  of  sea  peril  which  might  have  caused  the  leak  ; 
he  must  show  that  they  did.  This  he  may  do  by  showing  that  the  peril 
was  of  such  a  character  that  injury  to  the  vessel  was  its  natural  and 
necessary  consequence;  or  he  may  prove  that  the  vessel  was  in  fact 
injured,  by  the  testimony  of  those  who  observed  the  effect  of  the  peril 
at  the  time  of  its  occurrence ;  or  he  may  prove  the  fact  by  showing  her 
condition  on  her  arrival;  or  he  may  exclude  any  other  hypothesis  by 
satisfactory  proof  that  her  decks  were  sound,  staunch  and  well  caulked 
at  the  commencement  of  the  voyage. 

In  Kirby  v.  Adams  Ex.  Co.,  2  Mo.  App.  369  (1876),  the  Court  say 
that  the  presumption  from  the  fact  of  loss  is  that  it  was  occasioned  by 
negligence.  This  is  true  where  the  loss  is  unexplained.  But  if  more 
than  this  was  intended  by  the  Court  the  proposition  is  against  the 
weight  of  authority. 

In  Roberts  v.  Riley,  15  La.  Ann.  103  (i860),  it  was  agreed  that  the 
goods  shipped  should  be  in  the  exclusive  custody  of  the  shipper  or  his 
servants.  Yet  the  Court  held  that  in  case  of  loss  the  burden  of  proof 
was  on  the  carrier  to  show  that  the  loss  was  caused  by  the  negligence 
of  the  shipper's  servants.  This  is  construing  the  rule  literally,  but  the 
Court  would  seem  to  carry  it  further  than  the  circumstances  of  the  case 
required.  The  rigid  common  law  doctrine  as  to  the  carrier's  liability 
rested  on  the  assumption  that  the  goods  were  in  his  custody.  Where 
the  consignee  of  a  package  of  money  refused  to  receive  it,  and  conse- 
quently the  package  was  returned  to  the  consignor,  it  was  held  that  the 
carrier  was  not  bound  to  account  for  the  loss  of  part  of  the  contents  of 
the  package,  or  to  show  when,  where  or  how  it  occurred.  But  this  was 
put  on  the  ground  that  part  of  the  transit  was  over  a  connecting  line, 
and  as  to  this  part  of  the  route  the  connecting  carrier,  under  the  terms 
of  the  contract,  was  liable  only  as  forwarder.  American  Ex.  Co.  v. 
Second  National  Bank,  69  Penn.  384  (1871). 


BURDEN  OF  PROOF  OF  NEGLIGENCE  AND  LOSS.   255 

lance  was  used,  and  that  the  loss  was  really  caused  by  the 
darkness  and  storm,  and  not  by  the  captain's  negligence.^ 
When  the  carrier  has  proved  that  the  loss  was  caused 
immediately  by  one  of  the  excepted  perils,  the  burden  of 
proof  again  shifts  to  the  plaintiff,  and  it  is  incumbent  on 
him  to  show  that  its  real  cause  was  the  negligence  of  the 
carrier  or  his  agents.^ 


^  The  Juniata  Paton,  i  Biss.  15  (1852).  In  this  case  the  bill  of  lad- 
ing contained  the  clause,  "  dangers  of  navigation  excepted."  The  car- 
rier was  held  to  bring  himself  within  this  clause  by  proving  that  on  a 
dark  and  stormy  night,  at  the  entrance  of  a  harbor,  difficult  of  access, 
he  mistook  a  light  on  shore  in  a  line  with  the  pier  light  for  the  latter,  in 
consequence  of  which  mistake  he  steered  wrongly,  and  the  vessel  went 
ashore  and  damaged  a  portion  of  the  cargo.  The  Court  said  that  in 
order  to  avail  himself  of  the  benefit  of  this  restrictive  clause  he  must 
bring  his  case  strictly  within  the  words  of  the  exception,  and  for  this 
purpose  the  burden  of  proof  is  upon  him. 

^  Harris  v.  Packwood,  3  Taunt.  264  (18 10);  Marsh  v.  Home,  5  Barn. 
&  Cress.  322  (1826);  Western  Transportation  Co.  v.  Downer,  11  Wall. 
129  (1871);  Clark  V.  Barnwell,  12  How.  (U.  S.)  272  (1851);  The  Adri- 
atic, 16  Blatch.  424  (1879);  The  Saratoga,  20  Fed.  Rep.  869  (1884); 
Marx  V.  The  Britannia,  34  Fed.  Rep.  906  (1888);  The  Barracouta,  39  Fed. 
Rep.  288  (1889);  The  New  Orleans,  26  Fed.  Rep.  44  (1885);  French  v. 
Buffalo  &  Erie  R.  R.,  2  Abb.  Ct.  App.  Dec.  (N.  Y.)  196;  s.  c.  4  Keyes, 
108(1868);  Lamb  z'.  Camden  &  A.R.  R.  &  T.  Co.,  46  N.  Y.  27r  (1871); 
Kallman  v.  U.  S.  Express  Co.,  3  Kans.  205  (1865);  Kansas  Pacific  R. 
Co.  V.  Reynolds,  8  Kans.  623  {187 1);  Sager  v.  Portsmouth,  S.  &  P.  & 
E.  R.  R.,  31  Me.  228  (1850);  Patterson  v.  Clyde,  67  Penn.  500  (1871): 
Price  V.  The  Ship  Uriel,  10  La.  Ann.  413  (1855);  Little  Rock,  M.  R.  & 
T.  R.  R.  V.  Corcoran,  40  Ark.  375  (1883).  See  Childs  v.  Little  Miami 
R.  R.,  I  Cine.  (Ohio),  480  (1871). 

In  Clark  v.  Barnwell  the  Court  say:  "  If  it  can  be  shown  that  it  (the 
loss)  might  have  been  avoided  by  the  use  of  proper  precautionary  meas- 
ures, and  that  the  usual  and  customary  methods  for  this  purpose  have 
been  neglected,  they  (the  carriers)  may  still  be  held  liable.  Hunt  v. 
The  Propeller  Cleveland,  i  Newb.  Adm.  221;  6  McLean,  76  (1853); 
Slater  v.  So.  Car.  R.  Co.,  29  S.  Car.  96;    s.  c.  6  S.  E.  Rep.  936  (1888). 

In  French  v.  Buffalo  &  Erie  R.  R.,  it  was  held  that  it  was  enough 
for  the  shipper,  when  the  loss  was  shown  to  have  been  caused  by  an  ex- 
cepted peril,  to  prove  that  the  injury  resulted  from  a  railroad  accident, 
the  causes  of  which  were  not  explained,  and  which  did  not  appear 
affirmatively  not  to  have  been  preventible  by  the  exercise  of  ordinary 
care  and  diligence  on  the  part  of  the  company  and  its  servants. 

The  proposition  in  the  text  is  also  sustained  by  Canfield  v.  Bait.  & 
Ohio  R.  R.,  93  N.  Y.  532  (1883);  Cochran  v.  Dinsmore,  49  N.  Y.  249 
(1872);    Sutro  V.   Fargo,  41    N.   Y.  Super.  Ct.  231  (1876);  Smith  v.  N. 


256  THE   MODERN   LAW   OF   CARRIERS. 

This  is  especially  so  when  the  contract  of  shipment  is 
that  the  carrier  shall  not  be  liable  for  loss  arising  from 
certain  specified  risks,  unless  it  shall  be  proved  that  such 
loss  occurred  through  the  negligence  or  default  of  the 
carrier's  agents.^ 

It  is  not  enough  to  show  an  error  in  judgment  on  the 
part  of  the  carrier  s  servants.  It  is  incumbent  on  the 
shipper  to  prove  actual  negligence  in  order  to  deprive  the 
carrier  of  the  benefit  of  the  clauses  of  exemption  in  his 
contract.'^ 

This  proposition  is  well  illustrated  by  the  litigation 
that  arose  in  consequence  of  the  fire  at  the  pier  of  the 
Camden  &  Amboy  R.  R.  Co.  in  the  city  of  New  York  in 
1864.  The  fire  broke  out  on  the  defendant's  steamboat, 
which  was  lying  at  the  pier.  The  crew  were  on  board  and 
watchmen  were  on  duty  at  the  warehouse  on  the  pier. 
The  fire  extended  to  this  warehouse,  which  was  consumed 

Car.  R.  R.,  64  N.  C  235  (1870);  Bankard  v.  Bait.  &  O.  R.  R.,  34  Md. 
197  (1870). 

By  statute  in  Utah  (Comp.  Laws,  sect.  503,  p.  217,  ed.  1876  ;  sect. 
2359,  ed.  1888),  proof  that  property  is  set  on  fire  by  sparks  from  an 
engine  raises  a  pri7iia  facie  presumption  of  negligence  on  the  part  of 
the  carrier.  Anderson  v.  Wasatch  &  J.  V.  R.  R.,  2  Utah,  518  (1880). 
It  was  held  in  this  case  that  where  the  sparks  set  fire  to  grass  which  in 
turn  set  fire  to  the  plaintiff's  property,  there  was  a  "communication"  of 
fire  from  the  engine  within  the  statute.  See  Turney  v.  Wilson,  note  4, 
p.  2^1, post. 

Where  there  was  a  contract  limiting  the  amount  for  which  the  car- 
rier was  liable,  an  Alabama  Court  held  that  the  burden  was  on  him  to 
show  that  the  loss  occurred  without  negligence.  Ala.  Gt.  So.  R.  R.  v. 
Little,  71  Ala.  611  (1882).  But  where  the  proof  showed  very  heavy 
weather  and  the  damage  was  such  that  it  might  have  been  caused  by 
the  storm,  there  should  be  some  rebutting  proof  of  negligence  in  order 
to  charge  the  carrier.  The  Fern  Holme,  24  Fed.  Rep.  502  (1885); 
Giglio  V.  The  Britannia,  31  Fed.  Rep.  432  (1887);  The  Thomas  Mel- 
ville, 31  Fed.  Rep.  486  (1887);  The  Jefferson,  31  Fed.  Rep.  489  (1887); 
Louisville  &  N.  R.  R.  v.  Oden.  80  Ala.  38  (1885);  Czech  v.  Gen.  Steam 
N.  Co.,  L.  R.,  3  C.  P.  14  (1867);  Piatt  v.  Richmond,  Y.  R.  &  C.  R.  R., 
108  N.  Y.  358  (1888). 

1  Wertheimer  v.  Penn.  R.  R.,  17  Blatchf.  421  (1880).  The  loss  in 
this  case  was  caused  by  fire  during  the  Pittsburgh  riots  of  1877. 

*  The  "  Montana,"  17  Fed.  Rep.  377  (1883). 


BURDEN  OF  PROOF  OF  NEGLIGENCK  AND  EOSS.   257 

witli  its  contents.  Actions  were  brought  against  the  car- 
rier, in  the  New  York  Common  Pleas.  The  plaintiff 
proved  his  loss.  The  defendant  then  proved  that  this  was 
caused  by  fire,  which  was  one  of  the  risks  excepted  in  the 
bill  of  lading.  The  plaintiff  then  gave  evidence  tending 
to  show  that  the  cause  of  the  fire  was  defendant's  negli- 
gence. The  carrier  gave  rebutting  proof.  The  trial 
Court  refused  to  charge  that  the  burden  was  on  the 
plaintiff  to  prove  that  the  real  cause  of  the  fire  was  the 
carrier's  negligence.  The  New  York  Court  of  Appeals 
held  that  this  was  error  and  reversed  the  judgment.^  The 
same  rule  was  laid  down  by  the  Supreme  Court  of  Penn- 
sylvania in  a  case  growing  out  of  the  same  fire.^  All  the 
authorities  concede  that  the  carrier  is  bound  to  use  dili- 
gence, skill  and  foresight  to  guard  against  loss  by  the  ex- 
cepted perils,^  and  it  has  been  held  that  the  burden  is  on 
him  to  prove  that  he  complied  with  the  requirements  of 
law  in  each  particular.*  But  the  weight  of  authority  is 
otherwise. 

^  Lamb  v.  Camden  &  Amboy  R.  R.,  46  N.  Y.  271  (1871);  revg.  s. 
c.  2  Daly,  454  (1869). 

^  Farnham  v.  Camden  &  Amboy  R.  R ,  55  Penn.  53  (1867).  To  the 
same  effect  are  Little  Rock,  M.  R.  &  T.  R.  R.  v.  Corcoran,  40  Ark.  375 
(1883);  Little  Rock,  M.  R.  &  T.  R.  R.  v.  Harper,  44  Ark.  208  (1884); 
Denton  v.  Chicago,  R.  I.  &  P.  R.  Co.,  52  Iowa,  161  (1879);  Whitworth 
V.  Erie  R.  Co.,  45  N.  Y.  Super.  Ct.  603  (1879). 

'  In  The  Saratoga,  20  Fed-  Rep.  869  (1884),  the  goods  were  stolen. 
Loss  by  thieves  was  one  of  the  excepted  perils.  The  Court  held  that 
no  ordinary  and  reasonable  precaution  must  be  neglected  by  the  carrier, 
and  that  the  omission  to  use  a  precaution  provided  by  the  owner  and  to 
observe  a  suspicious  person  was  negligence. 

The  Maggie  M.,  30  Fed.  Rep.  692  (1887).  The  carrier  must  also 
prove  that  he  used  diligence  in  furnishing  means  of  transportation,  and 
if  he  excuses  his  failure  to  do  so  he  must  prove  diligence  in  notifying 
the  shipper  of  his  inability.  Ayres  v.  Chicago  &  N.  W.  R.  Co.,  71  Wis. 
372  ;  s.  c.  37  N.  W.  Rep.  432  (1888). 

*  Turney  v.  Wilson,  7  Yerger  (Tenn.),  340  (1835);  Mobile  &  Ohio 
R.  R.  V.  Jarboe,  41  Ala.  644  (1868);  U.  S.  Express  Co.  v.  Backman,  28 
Ohio  St.  144  (1875);  Baker  v.  Brinson,  9  Rich.  Law  (S.  C-),  201  (1856); 
Levering  v.  Union  Trans.  &  Ins.  Co.,  42  Mo.  88  (1867).  In  this  case 
the  loss  was  by  fire,  an  excepted  peril,  but  the  Court  held  that  the  car- 
17 


258 


THE   MODERN   LAW   OF   CARRIERS. 


No  doubt  the  circumstances  attendant  upon  the  loss  or 
injury  in  question  may  be  such  as  to  justify  a  Court  or  a 

rier  must  show  that  the  loss  was  not  caused  by  any  want  of  care,  skill 
and  diligence  on  its  part.  Still,  if  in  such  case  the  persons  in  charge  of 
the  train  took  all  reasonable  care  and  used  all  reasonable  precautions, 
and  the  car  containing  the  goods  was  reasonably  tight  and  suitable  for 
the  transportation  of  the  goods,  the  carrier  will  not  be  liable. 

In  Turney  v.  Wilson,  the  carrier  by  contract  exempted  himself  from 
liability  from  loss  occasioned  from  "dangers  of  the  river."  It  was  held 
that  he  would  be  responsible,  except  for  losses  which  could  not  have 
been  prevented  by  human  skill  and  foresight,  and  it  was  incumbent  on 
him  to  prove  that  the  loss  did  occur  from  such  cause.  In  Mobile  & 
Ohio  R.  R.  V.  Jarboe,  the  bill  of  lading  contained  an  exception  in  these 
words:  "taken  at  the  owner's  risk."  It  was  held  that  the  carrier  must 
at  least  show  prima  facie  that  the  loss  was  not  caused  by  negligence. 
The  contract  was  made  during  the  late  war.  The  railroad  was  at  that 
time  frequently  used  by  the  military  authorities  in  the  transportation  of 
troops  and  supplies,  and  in  consequence  of  the  condition  of  the  country 
there  was  a  great  want  of  safety  and  certainty  in  the  transporting  of 
freight  over  the  road.  It  was  held  that  these  facts  were  insufficient  to 
make  out  a  prima  facie  case  of  absence  of  negligence.  It  is  to  be  ob- 
served that  in  this  case  no  specification  was  made  of  any  particular  kind 
of  loss  for  which  the  carrier  would  not  be  responsible.  This  constitutes 
a  distinction  between  this  case  and  those  cited  ante,  p.  255,  note  2. 

In  Chicago,  St.  L.  &  New  Orleans  R.  R.  v.  Moss,  60  Miss.  1003 
(1883);  s.  c.  45  Am.  Rep.  428,  the  Court,  commenting  upon  the  ques- 
tion uf  the  burden  of  proof  of  the  carrier's  negligence,  say  :  "  It  is  no  un- 
common thing  in  this  age  to  see  under  one  management  a  line  of  rail- 
roads extending  from  the  lakes  of  the  North  to  the  Gulf  of  Mexico,  or 
from  the  Atlantic  to  the  Pacific  ocean.  To  hold  that  a  shipper  in  New 
York  or  Chicago  shall  be  required  to  establish  the  negligence  of  the 
carrier  by  proof  of  the  circumstances  of  a  fire  in  California  or  New 
Orleans,  would  in  a  great  number  of  cases  result  in  a  verdict  for  the 
carrier,  even  though  there  was  in  fact  negligence.  In  a  great  majority 
of  cases  the  facts  rest  exclusively  within  the  knowledge  of  the  employees, 
whose  names  and  places  of  residence  are  unknown  to  the  shipper.  In 
many  cases  the  witnesses  are  the  employees  whose  negligence  has  caused 
the  loss,  and  if  known  to  the  shipper  it  may  be  dangerous  for  him  to 
rest  his  case  upon  their  testimony.  .  .  .  All  the  authorities  hold 
that  it  devolves  upon  the  carrier  to  show  the  loss  to  have  occurred  by 
the  excepted  cause.  In  doing  this  it  will  add  but  little  to  his  burden  to 
show  all  the  attending  circumstances,  and  that  the  burden  rests  upon 
him  to  do  so  and  disprove  his  own  negligence,  we  think  arises  from  the 
terms  of  the  contract,  from  the  character  of  his  occupation,  and  from 
that  rule  governing  the  production  of  evidence  which  requires  the  facts 
to  be  proved  by  that  party  in  whose  knowledge  they  peculiarly  lie." 

And  in  Chicago,  St.  L.  &  N.  O.  R.  R.  v.  Abels,  60  Miss.  1017  (1883), 
the  same  Judge  said  :  "  The  burden  is  on  the  carrier  .  .  .  to  show 
that  the  injury  complained   of  resulted,  without  fault  of  the  carrier, 


BURDEN  OF  PROOF  OF  NEGLIGENCE  AND  LOSS.   259 

jury  in  finding  negligence  on  the  part  of  the  carrier,  with- 
out other  proof/     Still  it  is  equally  true  that  "  negligence 

from  some  cause  excepted  by  the  contract.  The  carrier  in  such  case 
must  show  at  least  prima  facie  that  the  injury  did  not  result  from  neg- 
lect. It  would  then  devolve  on  the  other  party  to  produce  evidence  to 
fasten  blame  on  the  carrier  for  the  injury.  .  .  .  The  carrier  must 
show  a  full  performance  of  duty  with  respect  to  what  was  shipped, 
according  to  its  nature,  and  when  that  showing  is  made,  and  that  the 
injury  was  from  an  excepted  cause  in  the  contract,  liability  cannot  be 
fixed  on  the  carrier,  except  by  proof  of  a  want  of  due  care  and  dili- 
gence."    Ryan  v.  Mo.  &  K.  &  T.  R.  Co.,  65  Texas  13  (1885). 

It  has  been  held  that  under  a  clause  exempting  the  carrier  from 
liability  for  loss  by  fire,  the  burden  of  proof  is  on  the  carrier  to  show 
that  the  fire  was  not  caused  by  his  own  negligence.  Grey's  Executors 
V.  Mobile  Trade  Co.,  55  Ala.,  387  (1876).  In  this  case  a  cargo  of  cotton 
was  transported  on  a  steamer  under  a  bill  of  lading  which  excepted 
"  dangers  of  the  river  and  fire."  The  cotton  was  burned.  It  was  held 
that  the  carrier  must  show  that  he  employed  that  degree  of  diligence 
which  very  careful  and  prudent  men  take  of  their  own  affairs;  and  that 
his  failure  to  have  the  cotton  upon  the  steamer's  deck  "  protected  by  a 
complete  and  suitable  covering  of  canvass,  or  other  suitable  material, 
to  prevent  ignition  from  sparks,"  as  required  under  penalty  by  act  of 
Congress  approved  July  25,  1866  (14  U.  S.  Stat,  at  Large,  227),  was  a 
lack  of  that  extraordinary  care  and  diligence  which  the  law  requires  in 
such  cases,  and  rendered  the  carrier  liable  for  the  loss.  These  cases  of 
loss  by  fire  may  possibly  be  harmonized  with  those  previously  referred 
to,  on  the  ground  that  the  carrier  has  better  means  of  information  than 
the  shipper  as  to  the  origin  of  a  fire,  and  ought,  therefore,  to  be  able  to 
explain  it,  and  that  his  failure  to  do  so  raises  a  presumption  of  negli- 
gence. Penn.  R.  R.  v.  Miller,  87  Penn.  395  (1878);  Berry  v.  Cooper, 
28  Geo.  543  (1859). 

Where  delay  was  shown  to  have  been  caused  by  high  water,  this  was 
held  not  enough  to  excuse  the  carrier,  because  it  might  have  been  possi- 
ble to  anticipate  and  ship  by  another  line.  Chicago,  B.  &  Q.  R.  R.  v. 
Manning,  23  Neb.  552;  s.  c.  37  N.  W.  Rep.  462  (1888). 

^  Caldwell  V.  N.  J.  Steamboat  Co.,  47  N.  Y.  282  (1872);  Mullen  v. 
St.  John,  57  N.  Y.  567  (1874);  Blanchard  v.  W.  U.  Tel.  Co.,  60  N.  Y. 
510  (1875);  Marckwald  v.  Oceanic  Steam  Nav.Co.,  11  Hun  (N.  Y.),  462 
(1877).  So  where  a  bad  condition  of  the  vessel  developes  during  the 
voyage,  and  no  adequate  cause  from  stress  of  weather  or  otherwise 
appears,  it  becomes  a  presumption  of  fact  that  the  vessel  was  unsea- 
worthy  when  she  sailed.     Cameron  v.  Rich,  4  Strobh.  (S.  C-)  168  (1850). 

The  character  of  the  evidence  which  will  or  will  not  establish  that 
damage  to  cargo,  occurring  during  a  voyage,  was  due  to  an  excepted 
peril  is  considered  in  The  Bark  Vivid,  4  Bened.  319  (1870);  The  Ship 
Delhi,  4  Bened.  345  (1870);  The  Steamship  Bellona,  4  Bened.  503 
(1871);  The  Steamship  Pereire,  8  Bened.  301  (1875);  Six  hundred  and 
thirty  casks  of  wine,  14  Blatchf.  517  (1878).  If  the  cargo  is  damaged, 
and  the  proof  is  that  the  weather  was  heavy  enough  to  cause  damage,  it 


26o  THE   MODERN   LAW   OF   CARRIERS. 

is  never  presumed.''  ^  In  tlie  case  of  live  stock,  the  mere 
fact  of  sickness  at  the  journey's  end  is  not  evidence  of 
neglio^ence  on  the  part  of  the  carrier,  if  there  be  no  ex- 
ternal injuries."^ 

In  Western  Transportation  Co.  v.  Downer,^  it  was 
shown  that  the  carrier's  vessel  was  staunch  and  well 
equipped.  The  Court  held  that  negligence  would  not  be 
presumed  from  the  fact  that  she  grounded  on  a  dark  night 
at  the  entrance  of  a  well-known  harbor  on  the  lake.* 

is  for  the  shipper  to  show  bad  stowage.  Proof  that  other  cargo  of  like 
character  adjoining  that  injured  was  not  itself  injured  is  not  enough. 
The  Polynesia,  30  Fed.  Rep.  210  (1887).  On  the  other  hand,  in  The 
Black  Hawk,  9  Bened.  207  (1877),  it  was  held  that  the  fact  that  a  cask 
of  wine  had  its  head  crushed  in  was  evidence  of  either  negligent  stow- 
age or  handling,  which  the  carrier  must  rebut;  and  that  proof  of  careful 
stowage  did  not  rebut  the  presumption  of  negligent  handling.  In  The 
Adriatic,  16  Blatchf.  424  (1879),  the  bales  in  question  when  unpacked 
were  found  to  have  been  injured  by  sea  water.  The  carrier  showed 
that  the  goods  were  properly  stowed,  that  no  other  goods  came  out  wet, 
and  that  there  was  no  sign  of  a  leak  in  the  ship;  and  the  appearance  of 
the  goods  indicated  that  they  might  have  been  injured  before  delivery 
to  the  carrier.  It  was  held  that  the  burden  was  on  the  shipper  to  show 
the  injury  occurred  on  board  that  ship. 

1  Memphis  &  Charleston  R.  R.  v.  Reeves,  10  Wall.  176(1869);  New 
Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  (U.  S.)  344  (1848); 
Curran  v.  Warren  Chemical  &  M.  Co.,  36  N.  Y.  153,  156  (1867);  Curtis 
V.  Rochester  &  Syr.  R.  R.,  18  N.  Y.  534  (1859);  Schmidt  v.  Blood,  9 
Wend.  (N.  Y.)  268  (1832);  Sherman  z-.  Western  Trans.  Co.,  62  Barb. 
150  (1861);  Gandy  v.  Chicago  &  N.  R.  R.,  30  Iowa,  421  (1870);  Laing 
V.  Colder,  8  Penn.  St.  479  (1848);  Bankard  v.  Baltimore  &  Ohio  R.  R., 
34  Md.  197  (1870). 

"^  Hussey  v.  The  Saragossa,  3  Woods,  380  (1876).  No  doubt  the 
decision  would  have  been  otherwise  had  any  circumstances  been  in  evi- 
dence tending  to  show  that  the  horses  in  question  had  been  negligently 
stowed.  In  a  fruit  case,  where  there  was  evidence  of  defective  ventila- 
tion, the  shipper  recovered,  and  it  was  held  that  he  was  not  bound  to 
prove  that  there  was  no  inherent  deterioration.  The  Steamship  America, 
8  Bened.  491  (1878).  Where  by  the  contract  the  shipper  was  to  have  the 
care  of  the  stock,  and  the  horse  was  found  dead  at  the  end  of  the 
journey,  without  explanation,  the  carrier  was  not  liable;  and  scmbie  that 
there  being  no  evidence  of  negligence,  the  special  contract  was  not 
necessary  to  protect  the  carrier.  Penn.  R.  R.  v.  Riordan,  13  Atl.  Rep. 
(Penn.)  324  (1888). 

=•  II  Wall.  129  (1871);  compareThe  Juniata  Paton,  ante,  p.  255,  n.  i. 

*  The  Court,  however,  expressly  admitted  the  soundness  of  the  doc- 
trine laid  down  in  Scott  v.  London  &  St.  K.  Docks,  3  Hurlst  &  Colt 


BURDEN  OF  PROOF  OF  NEGLIGENCE  AND  LOSS.   26 1 

The  inference  of  negligence  from  the  circumstances 
attendant  upon  the  disaster  would  be  made  less  readily  in 
case  of  a  marine  disaster  than  in  that  of  one  on  land. 
Man  has  done  much  to  control  the  winds  and  currents  of 
the  ocean,  but  their  forces  are  much  less  subject  to  his 
skill  than  the  agencies  by  which  transportation  on  land 
is  effected.  The  question  is  really  one  of  fact,  and  must 
be  determined  by  the  circumstances  of  each  case.^ 

596  (1865),  as  follows:  "Where  the  thing  is  shown  to  be  under  the 
management  of  the  defendant  or  his  servants,  and  the  accident  is  such 
as  in  the  ordinary  course  of  things  does  not  happen  if  those  who  have 
the  management  use  proper  care,  it  affords  reasonable  evidence  in  the 
absence  of  explanation  by  the  defendants  that  the  accident  arose  from 
want  of  care."  In  this  action  the  plaintiff  proved  that  he  was  an  ofificer 
of  the  customs,  and  that  whilst  in  the  discharge  of  his  duties  he  was 
passing  in  front  of  a  warehouse  in  the  dock,  when  six  bags  of  sugar  fell 
upon  him.     Held  evidence  of  negligence  sufficient  to  be  left  to  the  jury. 

So  in  Ketchum  v.  American  Merchants'  Union  Ex.  Co.,  52  Mo.  390 
(1873),  't  w^s  held  that  the  breakage  of  goods  while  in  the  carrier's  pos- 
session was  prima  facie  evidence  of  negligence,  and  the  burden  was  on 
him  to  explain  it.  On  the  other  hand,  in  Forbes  v.  Dallett,  9  Phila. 
(Penn.)  515  (1872),  the  Court  held  that  leakage  of  petroleum  from  the 
barrels  in  which  it  was  shipped  raised  no  presumption  of  negligence. 
In  that  case  the  contract  was  to  pay  freight  "  on  each  and  every  barrel, 
delivered  full,  not  full,  or  empty."  This  case  is  not  really  inconsistent 
with  Adams  Ex.  Co.  v.  Stettaners,  61  111.  184  (1871),  although  at  first 
sight  it  may  appear  to  be.  The  Court  do  say  in  the  latter  case  that  no 
special  contract  can  change  the  law  as  to  the  burden  of  proof.  But  this 
must  be  understood  with  reference  to  the  facts  which  showed  a  loss 
wholly  unexplained.  In  Forbes  v.  Dallett,  the  nature  of  the  substance 
transported  tended  of  itself  to  explain  the  loss,  and  the  language  of  the 
contract  showed  that  this  was  within  the  contemplation  of  the  parties. 
In  Adams  Ex.  Co.  v.  Loeb,  7  Bush  (Ky.),  499  (1870),  the  contract  was 
that  the  carrier  should  not  be  liable -for  loss  caused  by  certain  specified 
causes,  unless  it  was  caused  by  the  carrier's  fraud  or  gross  negligence, 
and  it  was  held  that  the  burden  was  on  the  plaintiff  to  show  that  the 
loss  was  caused  by  fraud  or  negligence. 

And  where  a  bulkhead,  which  had  been  well  tested,  had  shown  itself 
sufficient  on  previous  occasions,  had  been  carefully  inspected  and 
showed  no  signs  of  weakness,  did  burst,  held  that  the  fact  of  its  bursting 
was  not  of  itself  proof  of  negligence.  New  York  Bal.  Dry  Dock  Co.  v. 
Howes,  9  Bened.  232  (1877).  Where  a  swinging  door  in  a  ferry  house, 
of  a  kind  in  ordinary  use,  had  caused  injury  to  a  passenger,  held  that 
the  burden  was  on  the  plaintiff  to  show  defective  construction.  The 
character  of  the  door  should  have  been  observed  by  plaintiff.  Nayman 
V.  Penn.  R.  R.,  118  Penn.  508  (1888). 

'  For  example:  In  Central  Passenger  R.  Co.  v.  Kuhn,  86   Ky.   578 


262  THE   MODERN   LAW   OF   CARRIERS. 

What  has  been  said  must  be  understood  with  this 
restriction.  The  negligence  for  which  a  recovery  is 
claimed  must  be  such  as  contributed  to  the  loss.^  The 
burden  of  showing  that  the  negligence  did  not  contribute 
to  the  loss  is  on  the  carrier.  If,  on  the  evidence,  it  ap- 
pears that  there  was  negligence  on  his  part,  and  it  is 
doubtful  whether  this  did  or  did  not  contribute  to  the  loss, 
his  defence  is  not  established.^     The  same  rule  applies 

(1888),  a  passenger  in  a  horse  car  injured  by  a  collision  with  an  engine 
at  a  railway  crossing  sued  both  companies.  Held  that  the  passenger 
not  being  in  fault,  there  was  a  presumption  that  the  accident  was  due  to 
the  negligence  of  the  servants  of  the  horse  car  company,  but  that  the 
burden  was  on  plaintiff  to  show  negligence  on  the  part  of  the  steam 
railway  company.  In  Falvey  £».  Northern  Trans.  Co.,  15  Wis.  129  (1862), 
the  vessel  in  which  the  goods  were  being  transported  from  Buffalo  to 
Racine  was  wrecked.  The  agreement  was  made  in  New  York  late  in 
the  season,  when  the  risk  of  navigation  on  the  lake  was  greater  than 
earlier  in  the  year.  Held  that  delay  in  transporting  goods  to  the  vessel 
vidj^  prima  facie  evidence  of  negligence. 

In  The  Bark  Wilhelmina,  3  Bened.  no  (1868),  the  goods  were 
injured  by  the  rolling  of  the  vessel  in  rough  weather.  Held  that  the 
burden  of  proof  was  on  the  shipper  to  show  that  proper  precautions 
were  not  taken  to  guard  against  the  danger.  When  a  shaft  which  had 
stood  service  for  many  years  breaks  in  heavy  weather,  the  burden  is 
still  on  the  shipper  to  show  defective  construction.  The  Rover,  2,2)  Fed. 
Rep.  515  (1887). 

^  Hill  V.  Sturgeon,  35  Mo.  212  (1864).  In  this  case  the  Court  held 
that  it  was  not  sufficient  to  entitle  a  shipper  to  recover  against  a  car- 
rier to  show  that  there  was  a  defect  about  the  vessel  or  want  of  skill  in 
the  carrier,  but  it  must  also  appear  that  such  defect  or  want  of  skill 
contributed  or  may  have  contributed  to  occasion  the  loss.  Where  the 
loss  is  caused  by  perils  of  navigation  within  the  exceptions  of  the  bill  of 
lading,  it  is  not  incumbent  upon  the  carrier  to  show  affirmatively  the 
particular  and  identical  cause  of  loss. 

2  Speyer  v.  The  Mary  Belle  Roberts,  2  Sawyer,  i  (1871);  Collier  v. 
Valentine,  11  Mo.  299  (1848);  and  see  opinion  Andrews,  J.,  in  Maghee 
V.  Camden  &  Amboy  R.  R.,  45  N.  Y.  514,  523  (1871).  The  question 
whether  the  negligence  did  or  did  not  contribute  to  the  injury  is  one  of 
fact  for  the  jury.  Canfield  v.  Bah.  &  O.  R.  R.,  93  N.  Y.  532,  537  (1883). 
In  Collier  v.  Valentine  it  appeared  that  the  carrier's  boat  was  not  sea- 
worthy, but  the  Court  held  that  he  could  show  that  the  loss  was  in  fact 
occasioned  by  the  excepted  perils  of  the  river,  and  not  by  the  unsea- 
worthiness of  the  boat.  Although  a  carrier  may  be  in  default,  yet  if  the 
loss  were  not  occasioned  by  his  default,  but  must  have  happened  with- 
out such  default,  he  is  not  liable.  The  rule  which  imputes  carelessness 
to  the  captain  whose  boat  strikes  a  known  rock  or  shoal,  unless  driven 


WHAT   CONSTITUTES  THE   CONTRACT.  263 

where  the  injury  is  occasioned  by  delay  in  transportation, 
unless  the  carrier  can  discharge  himself  by  a  proper  ex- 
cuse for  the  delay/  In  like  manner,  if  the  goods  are 
destroyed  by  one  of  the  excepted  perils,  but  the  destruc- 
tion takes  place  after  the  time  within  which,  according  to, 
the  usual  course  of  business,  the  goods  could  reasonably 
have  been  delivered,  the  carrier  is  liable.^ 


SECTION   III. 

WHAT  WILL  BE  TREATED  AS  A  PART  OF  THE  CONTRACT. 

A  notice  or  memorandum,  even  though  printed  upon 
the  bill  of  lading  or  other  contract  with  a  carrier,  unless 
referred  to  in  the  body  of  the  contract  and  thus  made  a 
part  of  it,  is  no  more  than  a  notice,  and  does  not  form  a 
part  of  the  contract  between  the  shipper  and  the  carrier.^ 


by  a  tempest,  is  only  applicable  to  navigation  where  the  rocks  and  shoals 
are  marked  upon  maps.  It  does  not  apply  to  the  navigation  of  those  rivers 
of  which  no  accurate  charts  exist.  In  such  navigation  each  case  must  be 
governed  by  its  own  circumstances,  and  be  tested  by  the  care  usually 
pursued  by  skilfuU  pilots  in  such  cases.  The  qualification  thus  stated 
is  certainly  reasonable.  In  Whitesides  v.  Russel,  8  Watts  tSr  S.  (Penn.) 
44  (1844),  it  was,  however,  held  it  was  not  enough  for  a  carrier  to  show 
that  his  steamboat  ran  on  a  rock  in  the  Ohio  river,  and  thereby  caused 
the  loss,  but  that  he  must  prove  that  diligence  and  skill  were  used  to 
avoid  the  accident,  and  that  it  was  unavoidable.  To  the  same  effect 
are  Graham  v.  Davis,  4  Ohio  St.  362  (1854);  Davidson  v-  Graham,  2 
Ohio  St.  131  (1853);  Swindler  v.  Hillard,  2  Rich.  (S.  C.)  286  (1845). 

1  Galena  &  Chicago  Union  R.  R.  v.  Rae,  18  111.  488  (1857). 

2  Whitworth  v.  Erie  R.  Co.,  45  N.  Y.  Super.  Ct.  602  (1879). 

^  Michigan  Central  R.  R.  v.  Mineral  Springs  Mfg.  Co.,  16  Wall.  319 
(1872);  Ayres  v.  Western  R.  R.,  14  Blatchf.  9  (1876);  Prentice  v. 
Decker,  49  Barb.  (N.  Y.)  21  (1867);  Limburger  v.  Westcott,  Jbtd,  283 
(1867);  Southern  Ex.  Co.  v.  Purcell,  37  Georgia,  103  (1867);  Ormsby 
V.  Union  Pac.  R.  Co.,  4  Fed.  Rep.  706  (1880).  In  Railroad  Co.  v. 
Manf.  Co.,  the  following  notice  was  printed  on  the  back  of  the  railroad 
company's  receipt  :  "  The  company  will  not  be  responsible  for  damages 
occasioned  by  delays  from  storms,  accidents  or  other  causes,  .  .  . 
and  all  goods  and  merchandise  will  be  at  the  risk  of  the  owners  thereof 
while  in  the  company's  warehouses,  except  such  loss  or  injury  as  may 


264  THE   MODERN   LAW   OF   CARRIERS. 

Much  less  would  a  notice  posted  in  a  steamboat  form  a 
part  of  such  contract.^ 

The  same  rule  has  been  applied  to  a  notice  on  the  back 
of  a  check  for  baggage,^  and  to  a  notice  on  back  of  a  rail- 
way ticket.^  If,  however,  the  notice  printed  on  the  back 
of  the  receipt  be  referred  to  upon  its  face,  and  thus  incor- 
porated therein,  it  will  be  taken  to  form  a  part  of  the  con- 
tract/     This    would    be  especially  clear  if  the  printed 


arise  from  the  negligence  of  the  agents  of  the  company."  Held  that 
this  formed  no  part  of  the  contract. 

In  Prentice  v.  Decker,  plaintiff's  daughter  delivered  her  baggage 
check  at  defendant's  office  and  received  their  card,  on  one  side  of  which 
was  printed,  "  Westcott's  Express  for  the  delivery  of  freight  and  bag- 
gage, &c."  At  the  bottom  of  the  card  the  following  statement  was 
printed  :  "  Delivery  of  baggage  to  railroads  and  steamboats  to  be  made 
to  the  baggage  agent  thereof,  liability  limited  to  $100,  except  by  special 
agreement  to  be  noted  on  this  card."  The  baggage  was  lost  while  in 
defendant's  charge.  Held  that  the  mere  manual  delivery  and  accep- 
tance of  the  card  was  not  evidence  of  the  daughter's  assent  to  the  terms 
thereon,  and  that  this  notice  was  no  part  of  the  contract  with  the  car- 
riers. In  Mauritz  v-  N.  Y.  Lake  Erie  &  W.  R.  Co.,  23  Fed.  Rep.  765 
(1884),  a  statement  purporting  to  limit  the  amount  of  the  carrier's 
liability  for  loss  of  or  injury  to  baggage  was  printed  on  the  face  of  a 
railway  ticket.  It  was  held  inoperative  unless  it  was  actually  called  to 
the  attention  of  the  passenger,  or  unless  it  was  negligent,  under  the  cir- 
cumstances, not  to  read  it. 

^  Freeman  v.  Newton,  3  E.  D.  Smith  (N.  Y.),  246  (1854'i.  In  this 
case,  however,  the  steamboat  owners  failed  to  give  the  plaintiff  an 
opportunity  to  comply  with  the  requirements  of  the  notice.  This  pur- 
ported to  exempt  them  from  liability  for  loss  of  baggage  which  had  not 
been  checked;  but  the  person  whose  duty  it  was  to  give  checks  was 
not  at  his  post  when  plaintiff's  baggage  was  received,  and  for  this  rea- 
son no  check  was  given. 

-  Malone  v.  Boston  &  Worcester  R.  R.,  12  Gray  (Mass.),  388  (1859). 

^  Brown  v.  Eastern  R.  R.,  11  Cush.  (Mass.)  97  (1853). 

*  Myrick  v.  Michigan  Central  R.  R.,  107  U.  S.  102  (1882).  In 
this  case  the  Court  gave  effect  to  the  printed  matter  on  the  back  of  the 
receipt.  At  the  same  time  it  must  be  observed  that  the  form  of  the 
receipt  in  that  case  was  not  sufficient  to  constitute  a  contract  in  itself. 
The  reference  to  the  matter  on  the  back  was  in  this  form:  "  Notice. 
See  rules  of  transportation  on  the  back  hereof."  The  Court  say: 
"  Though  this  rule,  brought  to  the  knowledge  of  the  shipper,  might  not 
limit  the  liability  imposed  by  a  specific  through  contract,  yet  it  would 
tend  to  rebut  any  inference  of  such  a  contract  from  the  receipt  of  goods 
marked  for  a  place  beyond  the  road  of  the  company." 


WHAT   CONSTITUTES   THE   CONTRACT.  265 

matter  claimed  to  be  a  part  of  the  contract  should  be 
signed  by  the  carrier,  and  be  sufficient  in  form  to  con- 
stitute a  contract  as  to  the  terms  of  carriage.  The  decis- 
ions as  to  railway  tickets  are  not  entirely  harmonious. 
The  weight  of  authority  is  that  printed  matter  upon  such 
a  ticket  does  not  constitute  a  contract,  and  that  the  ticket 
is  a  mere  voucher  showing  that  the  passenger  has  paid 
his  fare.^ 

The  printed  matter  upon  it  is,  however,  notice  to  the 
passenger.  There  are  many  cases  fully  considered  in 
Chapter  VII,  in  which  notice  of  the  carrier's  rules  and 
regulations  has  the  effect  of  making  them  binding  upon 
the  passenger.  In  all  such  cases  the  notice  may  be  given 
by  printing  it  upon  the  ticket  delivered  to  the  passenger.^ 

It  was  said  in  Pier  v.  Finch  ^  that  the  railway  ticket 
was  evidence  of  the  contract  to  carry  the  passenger.  No 
doubt  it  is  admissible  in  evidence  for  this  purpose,  just  as 
parol  proof  of  the  payment  of  fare  would  be,  but  its  force 
should  not  be  further  extended.^ 

A  pass  issued  to  a  drover  and  a  written  contempo- 
raneous agreement  referring  to  the  holder  of  the  pass 

^  Michigan  Central  R.  R.  v.  Harris,  12  Wallace,  65  (1870);  Frank  v. 
Ingalls,  41  Ohio,  560  (1885).  But  notice  on  the  ticket  that  a  coupon 
is  not  good  if  detached  is  binding;  and  perhaps  the  same  rule  will 
apply  in  regard  to  other  reasonable  rules  which  a  carrier  may  make 
without  the  assent  of  the  shipper  or  passenger.  Boston  &  M.  R.  R.  v. 
Chipman,  146  Mass.  107  (1888);  see  anfe,Chap.  X,  sect.  2,  pp.  225-233. 

^  See  cases  cited  in  Chap.  VII,  sect.  11,  ante,  pp.  177-180. 

^  Pier  V.  Finch,  24  Barb.  (N.  Y.)  514  (1857).  In  this  case  the  Court 
held  that  the  words  "good  for  this  trip  only"  upon  a  passage  ticket  will 
not  limit  the  undertaking  of  the  company  to  any  particular  day  or  any 
specific  train  of  cars.  They  do  not  relate  to  time,  but  to  a  journey ;  and 
if  the  ticket  has  not  been  previously  used,  it  entitles  the  holder  to  a 
passage  on  a  subsequent  day,  as  well  as  on  the  day  it  bears  date. 

*  Wilson  V.  Chesapeake  &  Ohio  R.  R.,  21  Gratt.  (Va.)  654  (1872). 
In  this  case  the  Court  say:  "At  all  events,  it  seems  to  be  well  settled 
that  a  carrier  cannot  be  released  from  the  legal  responsibilities  of  his 
undertaking,  unless  the  knowledge  of  the  notice  is  brought  home  to  the 
passenger  in  time  to  leave  the  car  and  have  his  baggage  removed  before 
the  train  leaves."     See  also  Chap.  X,  sect.  2,  an/e,  pp.  225-233. 


266         THE  MODERN  LAW  OF  CARRIERS. 

must  be  construed  together.^  So  a  shipper  who  relies  on 
a  notice  given  by  a  carrier  must  take  it  as  a  whole,  and 
the  carrier  in  such  case  is  entitled  to  the  benefit  of  any 
exemptions  contained  in  it.^ 

SECTION    IV. 

ADMISSIBILITY  OF  PAROL  EVIDENCE. 

The  bill  of  lading  or  other  carrier's  contract  of  ship- 
ment generally  consists  of  two  parts :  a  receipt  for  the 
goods,  and  a  contract  with  reference  to  their  carriage. 
The  admissions  in  the  receipt  are  evidence  against  the 
carrier  and  the  shipper,  but  not  conclusive  against  either, 
and  may  be  contradicted  by  parol  evidence.'^     Thus,  for 

1  Cleveland  P.  &  A.  R.  R.  v.  Curran,  19  Ohio,  i  (1869).  As  be- 
tween charterer  and  carrier,  the  charter  controls  the  bill  of  lading  issued 
by  the  latter.     Ardan  S.  S.  Co.  v.  Theband,  35  Fed.  Rep.  620  (1888). 

^  Burroughs  v.  Norwich  &  Worcester  R.  R.,  100  Mass.  26  (1868). 

3  The  Lady  Franklin,  8  Wall.  (U.  S.)  325  (1868);  The  Nith,  36  Fed. 
Rep.  86  (1888);  Mever  v.  Peck,  28  N.  Y.  590  (1864);  Abbe  v.  Eaton, 
51  N.  Y.  410  (1873);  Long  V.  N.  Y.  Central  R.  R.,  50  N.  Y.  76  (1872); 
Bissel  V.  Price,  16  111.  408  (1855);  Bond  v.  Frost.  6  La.  Ann.  801  (1851); 
Tarbox  v.  Eastern  Steamboat  Co.,  50  Me.  339  (1861). 

In  Nelson  v.  Woodruff,  i  Black  (U.  S.),  156  (1861),  it  was  held  that 
a  bill  of  lading  w^hich  stated  that  a  cargo  of  lard  in  casks  had  been 
shipped  in  "good  order  and  condition  "  was  but /r/w^/diaV  evidence 
of  their  condition,  and  did  not  preclude  the  carrier  from  showing  that 
the  loss  by  leakage  proceeded  from  causes  which  existed  but  were  not 
apparent  at  the  time  of  shipment.  In  Ellis  v.  Willard,  9  N.  Y.  529 
(1854),  it  was  stated  that  parol  evidence  of  condition  was  admissible 
even  though  the  goods  were  open  to  inspection  when  the  bill  of  lading 
was  given.  So  also  in  Abbe  v.  Eaton,  51  N.  Y.  410  (1873),  where  the 
bill  of  lading  contained  this  clause:  "All  damages  caused  by  boat  or 
carrier,  or  deficiency  of  cargo  from  quantity,  as  herein  specified,  to  be 
paid  by  the  carrier  and  deducted  from  the  freight."  Held  that  this  was 
not  a  guaranty  of  the  quantity  specified,  or  an  agreement  that  the  bill  of 
lading  should  furnish  the  only  evidence  of  the  quantity.  In  Glass  v. 
Goldsmith,  22  Wis.  488  (1868),  it  was  held  that  the  fact  that  the  shipper 
had  surrendered  to  the  warehouseman,  after  the  execution  of  the  bill  of 
lading,  his  warehouse  receipt  for  the  full  amount  named  in  such  bill, 
would  not  preclude  the  shipowner  from  disputing  the  correctness  of  the 
admission  in  the  bill  of  lading  that  the  full  amount  had  been  received 
by  the  carrier. 


ADMISSIBILITY   OF    PAROL   EVIDENCE.  267 

example,  the  statement  therein  that  the  package  shipped 
was  valued  at  fifty  dollars  was  held  subject  to  explanation 
by  parol  evidence.  The  shipper  proved  that  he  stated  to 
the  carrier's  agent  at  the  time  of  delivering  the  package  to 
him  that  it  contained  a  much  larger  sum.  It  was  held 
that  he  could  recover  the  full  value  of  the  package.^  On 
the  other  hand,  the  indorsement  by  the  company's  agent 
upon  the  package  of  the  words  "  said  to  contain  $300  "  has 
been  held  to  be  evidence  of  the  value  of  the  package.^ 

That  portion  of  the  bill  of  lading  which  expresses  the 
agreement  of  the  parties  cannot  be  contradicted  by  parol 
evidence.^ 

The  carrier  may,  however,  relieve  himself  from  liabil- 
ity for  delay  in  transportation  by  showing  that  the 
shipper  verbally  consented  to  the  manner  of  navigation 
which  caused  it.*     This  case  is  not  opposed  to  the  general 

1  Kember  v.  Southern  Express  Co.,  22  La.  Ann.  158  (1870). 

2  Weil  V.  Express  Co.,  7  Phila.  (Penn.)  88  (1868). 

3  White  V.  Van  Kirk,  25  Barb.  (N  Y.)  16  (1856);  Wolfe  v.  Meyers, 
3  Sandf.  S.  C.  R.  (N.  Y.)  7  (1849);  O'Rourke  v.  Tons  of  Coal,  i  Fed. 
Rep.  619  (1880). 

In  Fitzhugh  v.  Wiman,  9  N.  Y.  559  (1854),  the  Court  say  :  "As  to 
the  contract  for  transportation,  a  bill  of  lading  is  like  any  other  con- 
tract in  writing,  and  cannot  be  altered  or  contradicted  by  parol.  As  to 
the  quantity  or  property  acknowledged  by  it  to  have  been  received,  it 
has  been  sometimes  held  to  be  open  to  explanation,  as  a  receipt.  But 
the  cases  have  never  gone  to  the  extent  of  holding  that  the  agreement 
between  the  parties  as  to  the  destination  of  the  property,  or  the  freight 
to  be  paid,  or  any  other  of  the  terms  of  the  contract  for  carriage,  could 
be  varied  by  parol."  In  Camden  &  Atl.  R.  R.  v.  Bausch,  6  Central 
Rep.  121  (1887),  the  Court  was  equally  divided  as  to  the  admissibility  of 
parol  evidence  to  contradict  the  recital  in  a  pass,  that  the  transportation 
of  the  person  receiving  it  was  without  consideration.  In  Hostetter  v. 
B.  &  O.  R.  R.,  1 1  Atl.  Rep.  609  (Penn.)  (1887),  it  was  held  that  parol  evi- 
dence was  inadmissible  to  show  that  the  contract  was  for  transportation 
wholly  by  rail.  The  contract  was  silent  on  this  subject.  Parol  evidence 
cannot  be  used  to  add  to  a  bill  of  lading  a  verbal  agreement  to  deliver 
before  a  particular  day.  Petrie  v.  Heller,  35  Fed.  Rep.  310  (1888). 
Where  the  bill  of  lading  gives  the  ship  leave  to  call  at  any  port  or  ports, 
one  of  its  usual  ports  being  known  to  both  parties  to  be  under  quaran- 
tine, a  verbal  agreement  not  to  call  there  cannot  be  shown.  The 
Sidonian,  34  Fed.  Rep.  805  (1888);  aff'd,  35  Fed.  Rep.  534  (1888). 

*  Johnson  v.  Lightsey,  34  Ala.  169  (1859). 


268  THE   MODERN   LAW   OF   CARRIERS. 

rules  of  evidence.  After  a  written  contract  is  made  any 
of  its  stipulations  may  be  waived  or  modified  by  an  exe- 
cuted parol  agreement.^  But  tbere  are  decisions  in  refer- 
ence to  carrier's  contracts  whicb  go  farther  tban  this,  and 
are  irreconcilable  with  the  rules  which  are  applied  to 
other  species  of  contracts.  These  illustrate  the  readiness 
with  which  the  courts  have  taken  hold  of  any  circum- 
stances to  show  that  the  printed  receipt  given  to  the 
shipper  did  not  contain  the  real  contract  of  the  parties. 
Thus  it  was  held  in  Union  R.  R.  &  Trans.  Co.  v.  Riegel,^ 
that  although  the  printed  contract  required  that  the  con- 
signee's name  should  be  marked  on  each  package,  evidence 
was  admissible  to  show  that  this  was  waived  by  oral  agree- 
ment between  the  shipper  and  the  carrier's  agent.  This 
oral  agreement  further  stipulated  that  the  goods  were  not 
to  be  delivered  without  special  directions.  The  carrier 
was  consequently  held  liable  for  a  loss  caused  by  the 
delivery  to  the  consignee  in  violation  of  this  oral  agree- 
ment. 

The  Court  of  Appeals  of  the  State  of  New  York  in  a 
case  somewhat  similar  held  directly  the  reverse,  and  that 
evidence  of  verbal  directions  to  the  carrier  in  contradiction 
of  the  printed  receipt  was  inadmissible.^  This  doctrine  is 
more  in  accordance  with  the  general  rule,  and  must  be 
considered  as  preferable,  on  principle,  to  the  Pennsylvania 
decision  just  cited. 

The  meaning  which  the  law  implies  from  the  language 
of  a  contract  is  just  as  much  a  part  of  it  as  if  this  mean- 
ing were  expressed.  It,  therefore,  follows  that  one  party 
to  it  should  not  be  permitted  to  show  by  parol  that  an 
agreement  was  made  which  differed  from  that  which  the 

1  Taylor  v.  Seaboard  &  R.  R.  Co.,  5  S.  E.  Rep.  750  (1888). 

2  Union  R.  R.  &  Trans.  Co.  v.  Riegel,  73  Penn.  72  (1873).  -^  '^is 
case  there  were  marks  on  the  packages,  which  the  Court  held  were  to  be 
construed  in  connection  with  the  contract. 

=»  Hinckley  v.  N.  Y.  Central  R.  R.,  56  N.  Y.  429  (1874). 


ADMISSIBILITY   OF   PAROL   EVIDENCE.  269 

law  would  imply  from  the  terms  of  the  written  contract.^ 
But  a  contract  collateral  to  the  written  contract  may  be 
shown  by  parol.  Of  this  exception  to  the  general  rule  of 
exclusion  of  parol  evidence  to  contradict  or  vary  a  written 
contract,  the  most  familiar  instance  is  that  of  a  parol  war- 
ranty, collateral  to  a  written  bill  of  sale.^ 

To  draw  the  line  exactly  between  the  rule  and  the  ex- 
ception is  difficult,  and  to  pursue  the  subject  further  is  not 
within  the  scope  of  this  work. 

A  bill  of  lading,  like  other  contracts,  if  obscure,  may 
be  explained  by  parol  evidence.^ 

^  Martin  v.  Cole,  104  U.  S.  30  (1881);  Brown  v.  Spofford,  95  U.  S. 
474  (1877);  Brown  v.  Wiley,  20  How.  (U.  S.)  442  (1857);  Renard  v. 
Sampson,  2  Duer,  285  (1853);  aff' d,  12  N.  Y.  561  (1855).  In  White  v. 
Boyce,  21  Fed.  Rep.  228  (1884),  at  p.  232,  the  Court  say  :  "The  legal 
effect  of  a  written  contract  is  as  much  within  the  protection  of  the  rule 
which  forbids  the  introduction  of  parol  evidence  as  its  language."  This 
is  quoted  from  Barry  v.  Ransom,  12  N.  Y.  462,  464  (1855).  In  The 
Delaware,  14  Wall.  579  (187 1),  it  was  held  that  the  usual  clean  bill  of 
lading,  containing  no  consent  that  the  goods  might  be  carried  on  deck, 
imported  an  agreement  that  they  should  not  be  carried  there,  and  that 
parol  evidence  that  the  parties  agreed  that  the  goods  might  be  carried 
on  deck,  was  inadmissible.  Under  somewhat  peculiar  circumstances, 
such  evidence  was  held  to  be  admissible  in  Doane  v.  Keating,  12  Leigh 
(Va.),  391  (1841);  Missouri  Pacific  Ry.  Co.  v.  Fagan,  9  S.  W.  Rep. 
(Texas),  749  (1888). 

^  Morrison  v.  Davis,  20  Penn.  171  (1852).  Parol  proof  of  an  agree- 
ment that  the  carrier  would  be  liable  for  losses  caused  by  the  '"  act  of 
God"  was  held  admissible.  This  case  may  be  sustained  under  the  dis- 
tinction mentioned  in  the  text.  And  see  West  v.  The  Berlin,  3  Iowa, 
532  (1856);  Hamilton  v.  Western  N.  C  R.  R.,  96  N.  C  398  (1887). 

'  The  Wanderer,  29  Fed.  Rep.  260  (1886).  It  has  been  held  that 
conversation  as  to  the  probable  duration  of  the  voyage,  taking  place 
at  the  time  the  contract  is  made,  may  have  formed  an  inducement  to 
making  the  contract,  and  may  be  shown.  Blodgett  v.  Abbott,  40  N.  W. 
Rep.  (Wise.)  491  (i888). 


CHAPTER  XIII. 


SECTION   I. 

TIME   WHEN   CONTRACT   MADE.   AS   AFFECTING   ITS   CONSIDERA- 
TION  AND   VALIDITY. 

The  contract  between  tlie  shipper  and  the  carrier  is 
complete,  when  the  goods  are  delivered  by  the  former  and 
accepted  by  the  latter,  so  that  the  shipper  has  no  longer 
the  custody  or  control  of  them.  If  after  this  a  written  or 
printed  receipt,  containing  stipulations  limiting  the  car- 
rier's liability,  is  sent  by  the  carrier  to  the  shipper,  it  has 
no  force  as  a  contract,  unless  it  appears  that  it  was 
accepted  by  him  as  such.^ 

1  German  v.  Chicago  &  N.  W.  R.  R.,  38  Iowa,  127  (1874).  In  this 
case  the  shipper  was  to  send  some  one  with  the  cattle,  and  there  was  a 
custom  known  to  him  that  the  road  would  not  take  cattle  until  a  con- 
tract was  signed.  The  cars  were  sent  off  with  the  first  load  of  cattle 
before  the  contract  was  signed,  and  without  giving  him  the  opportunity 
to  send  a  drover  with  them.  Held  that  he  had  a  right  to  expect  the  cars 
would  wait  and  that  the  contract  which  was  afterwards  signed  was 
without  consideration.  The  case  is  put  also  on  the  ground  that  the 
carrier  failed  to  keep  his  part  of  the  contract. 

Bostwick  z/.  Baltimore  &  O.  R.  R-,  45  N.  Y.  712  (1871).  In  this 
case  goods  were  shipped  and  freight  paid  under  a  verbal  agreement,  for 
an  all  rail  route.  It  was  held  that  the  verbal  agreement  was  not  merged 
in  a  bill  of  lading  subsequently  sent  to  the  shipper.  The  court  say: 
"  Conditions  in  a  bill  of  lading  not  delivered  until  after  the  shipment 
and  loss  of  the  goods,  before  the  loss  was  known,  did  not  control  the 
rights  of  the  shippers."  Lamb  v.  Camden  &  Ambov  R.  R.,  4  Daly 
(N.  Y.),  483  (1873) ;  Coffin  v.  N.  Y.  Central  R.  R.,  64  Barb.  379  (1872) ; 
Schiff  V.  New  York  C  &  H.  R.  R.  R„  52  How.  Pr.  (N.  Y.)  91  (1876). 
The  Illinois  Supreme  Court  held  that  such  was  the  law  in  Massachu- 
setts. Michigan  Central  R.  R.  v.  Boyd,  91  111.  268  (1878)  ;  s.  p.  Gage 
V.  Tirrell,  91  Mass.  299  (1864).  And  such  is  the  law  in  Illinois.  Amer- 
ican Ex.  Co.  V.  Spellman,  90  111.  455  (1878).  The  point  was  considered 
but  not  decided  in  Merchants'  Despatch  Co.  v.  Cornforth,  3  Col.   280 

(1877)- 

In  Strohn  z^.  Detroit  &  Mil.   R.  R.,  21   Wis.  554  (1867),  the  court 


EFFECT    TIME   MAKING    CONTRACT.  27 1 

If  an  agent  authorized  to  ship  goods,  receives  and 
accepts  a  bill  of  lading  for  them  subsequently  to  their 
delivery  to  and  acceptance  by  the  carrier,  the  stipulations 
of  the  bill  of  lading  are  not  binding  upon  the  principal.^ 

The  receipt  of  a  bill  of  lading  and  even  its  acceptance 
by  the  shipper  after  the  goods  are  lost,  will  not  operate 
either  to  increase  or  diminish  the  carrier's  liability.^ 

said  that  it  would  be  a  fraud  on  the  part  of  the  carrier  to  insert  in  a 
bill  of  lading,  delivered  after  the  completion  of  the  oral  agreement,  any 
stipulations  not  included  in  the  latter. 

So  where  there  has  been  an  express  oral  contract  to  carry  goods  to 
a  place  beyond  the  carrier's  line,  and  the  goods  are  received  and 
placed  on  the  cars,  the  shipper  is  not  bound  by  a  bill  of  lading  or  re- 
ceipt, subsequently  given  him,  and  containing  only  a  contract  to  carry 
to  the  end  of  the  route.  Missouri,  Pa.,  R.  Co.  v.  Beeson,  30  Kans.  298 
(1883).  The  same  rule  was  applied  where  the  bill  of  lading  was  not  de- 
livered at  the  time  the  goods  were  received,  but  was  sent  by  mail  to  the 
place  of  their  destination.  Louisville  &  Nashville  R.  R.  v.  Meyer,  78 
Ala.  597  (1885).  So  where  the  bill  of  lading  was  issued  by  mistake  ,con- 
tradicted  itself  as  to  the  freight  to  be  paid  by  the  shipper,  and  covered 
only  a  portion  of  the  goods  shipped,  it  was  held  that  it  did  not  control 
a  prior  oral  agreement  pursuant  to  which  all  the  goods  were  shipped. 
Mehrbach  v.  Liverpool  &  G.  W.  S.  Co.,  12  Fed.  Rep.  77  (1882). 

In  Detroit  &  Milwaukee  R.  Co.  v.  Adams,  15  Mich.  458  (1867), 
part  of  a  lot  of  wool  was  delivered  to  the  defendant  by  the  plaintiff, 
and  received  for  transportation,  with  the  understanding  that  the  balance 
should  be  sent  to  the  depot  as  soon  as  defendant  should  give  notice  that 
it  had  cars  sufficient  for  the  shipment.  This  notice  was  given,  and  the 
rest  of  the  wool  was  delivered  to  and  accepted  by  defendant.  There- 
upon the  owner  signed  a  shipping  request,  to  the  effect  that  the  com- 
pany would  forward  all  the  wool,  according  to  certain  special  conditions 
limiting  the  carrier's  liability,  which  were  endorsed  upon  the  request. 
Part  of  the  wool  was  lost  before  the  residue  was  shipped.  Held,  that 
whatever  might  have  been  the  effect  of  such  an  agreement,  if  made  be- 
fore the  delivery  of  the  property  at  the  depot,  it  did  not  affect  the 
company's  liability  as  common  carrier  by  reason  of  the  prior  delivery 
to  and  acceptance  by  it ;  and  that  plaintiff  had  a  right  to  consider  the 
contract  as  referring  only  to  the  carrier's  liability  in  respect  to  the  car- 
riage of  the  property,  not  its  safe  keeping  in  the  depot  before  shipping. 

See  cases  cited  under  Chapter  X,  sect.  2,  ante  pp.  227-233. 

^  Shelton  v.  Merchants'  Trans.  Co.,  36  N.  Y.  Superior  Ct.  Rep.  527 
(1873);  Lamb  v.  Camden  &  Amboy  R.  R.,  4  Daly  (N.  Y.),  483 
(1873)  '■)  Perry  v.  Thompson,  98  Mass.  249  (1867).  In  this  case  atten- 
tion is  drawn  to  the  fact  that  the  clauses  of  exem[)tion  were  partly  con- 
cealed by  a  revenue  stamp  pasted  over  them. 

^  Gott  V.  Dinsmore,  11 1  Mass.  45  (1872)  ;  The  Edwin,  i  Sprague, 
477  (1859). 


272  THE    MODERN    LAW    OF   CARRIERS. 

A  similar  rule  was  applied  to  a  notice  on  a  railway- 
ticket,  relating  to  liability  for  the  loss  of  baggage,  whicli 
was  read  by  the  passenger,  but  not  until  after  he  had 
taken  his  seat  in  the  cars/ 

The  subsequent  receipt  of  a  bill  of  lading  by  the  con- 
signor, his  sending  it  to  the  consignee,  and  the  use  of  it 
by  the  latter  as  a  voucher  to  obtain  a  portion  of  the  goods 
shipped,  do  not  establish  its  validity  as  a  substituted  con- 
tract, if  it  be  shown  that  its  conditions  were  not  known  to 
the  consignor  and  never  assented  to  by  him.^ 

But  if  there  be  a  consideration  for  the  change  in  the 
original  contract  it  is  valid.  The  payment  of  the  freight 
in  advance  in  lieu  of  paying  it  on  delivery  would  consti- 
tute such  a  consideration.^ 

And  it  cannot  be  denied  that  the  possession  of  a  bill 
of  lading  is  of  value  to  the  shipper,  especially  in  ship- 
ments by  sea.  It  is  a  quasi-negotiable  instrument,  and 
constantly   used   as    collateral   security   for   the  loan   of 

1  Rawson  v.  Penn.  R.  R.,  48  N.  Y.  212  (1872)  Earl  C.  at  p.  217,  said: 
"  The  contract  between  these  parties  was  made  when  the  plaintiff 
bought  her  ticket  and  the  rights  and  duties  of  the  parties  were  then 
determined.  Hence,  even  if  the  plaintiff  had  read  what  appears  uporv 
her  ticket  after  she  had  entered  upon  her  journey,  it  would  have  made 
no  difference  with  her  rights.  She  was  not  then  obliged  to  submit  to 
a  contract  which  she  never  made,  or  leave  the  train  and  demand  her 
baggage." 

2  In  Bostwick  v.  Baltimore  «&:  Ohio  R.  R.,  45  N.  Y.  712  (1871),  the 
Court  said:  "After  the  verbal  agreement  had  been  consummated  and 
rights  had  accrued  under  it,  the  mere  receipt  of  the  bill  of  lading,  inad- 
vertently omitting  to  examine  the  printed  conditions,  was  not  sufficient 
to  conclude  the  plaintiff  from  showing  what  the  actual  agreement  was 
under  which  the  goods  had  been  shipped." 

Where  there  was  a  previous  contract  by  letter  and  the  carrier  ob- 
tained the  goods  from  the  ship  where  they  were,  and  issued  a  bill 
unknown  to  the  owner  exempting  itself  from  perils  of  navigation,  the 
owner  was  not  bound  thereby.     Park  v.  Preston,  108  N.  Y.  434  (1888). 

^  Baker  v.  Steamboat  Milwaukee,  14  Iowa,  214  (1862).  In  this  case 
Baldwin,  C  J-  (p.  225),  used  the  following  language :  "The  freight  was 
paid  as  it  is  claimed  upon  the  new  agreement,  and  if  the  jury  found 
this  to  be  the  fact,  then  we  think  the  defendant  was  bound  to  take  no- 
tice of  the  conditions  of  the  new  contract,  and  should  have  acted 
accordingly." 


EFFECT   TIME   MAKING   CONTRACT.  273 

money.  This  will  more  distinctly  appear  if  we  consider 
the  nature  of  a  bill  of  lading.  It  is  in  the  form  of  a  con- 
tract on  the  part  of  the  carrier  to  carry  and  deliver  goods. 
It  is  signed  by  the  officer  or  agent  of  the  carrier  and 
states  the  terms  and  conditions  of  the  contract  of  affreight- 
ment. The  acceptance  of  a  bill  of  lading,  knowing  that  it 
purports  to  represent  and  contain  the  contract,  makes  the 
contract  just  as  binding  on  the  shipper  as  his  signature 
would,  even  though  it  is  delivered  subsequently  to  the 
shipment.  It  is  not  a  case  where  a  signature  is  necessary^ 
and  the  acceptance  on  the  one  hand  and  the  signature  on 
the  other  are  simply  modes  of  indicating  that  the  con- 
signor contracts  with  the  carrier  on  the  terms  stated  in 
the  bill  of  lading.^ 

The  course  of  business  and  the  consequent  growth  of 
the  law  on  this  subject  is  this:  It  became  convenient  for 
carriers  not  to  deliver  bills  of  lading  when  goods  were 
received  at  the  pier  or  station,  but  to  deliver  to  the  carter 

^  York  Company  v.  The  Central  Railroad,  3  Wall.  107  (1865).  In 
that  case  it  was  proved  (p.  108)  "that  the  cotton  was  shipped  on  the 
steamer  before  the  bills  of  lading  were  signed  ;  that  the  shipper  had  not 
examined  the  bills ;  that  his  attention  was  not  called  to  the  fire  clause, 
and  that  his  firm  had  no  authority  to  ship  for  their  principals  with  that 
exemption."  It  was  also  argued  that  there  was  no  consideration  for  the 
exemption.  But  the  court  overruled  all  the  objections,  and  held  that 
the  plaintiff,  who  was  the  owner  of  the  goods,  was  bound  by  the  exemp- 
tion in  the  bill  of  lading.  St.  Louis,  K.  and  N.  R.  Co.  v.  Cleary,  77 
Mo.  634  (1883).  Bostwick  z^.  Baltimore  &  Ohio  R.  R.,  45  N.  Y.  712 
(1871). 

In  The  Alene,  25  Fed.  Rep.  562  (1885),  this  precise  question  was 
argued  fully  ;  but  the  court  did  not  pass  upon  it,  because  the  acceptance 
of  the  bill  of  lading  was  in  that  case  admitted  by  the  pleadings.  It 
appeared  that  when  the  goods  were  delivered  to  the  steamer,  receipts 
were  given  for  them,  and  that  the  bills  of  lading  were  not  delivered 
until  after  the  steamer  had  sailed.  It  also  appeared  that  it  had  been 
customary  practice  to  send  bills  of  lading  under  such  circumstances, 
and  that  the  shippers  duly  accepted  them.  Nothing  could  better  illus- 
trate the  way  in  which  this  practice  was  understood  than  the  fact  that 
the  libel  in  that  case  alleged  the  receipt  and  acceptance  of  the  bill  of 
lading,  and  it  was  not  until  the  case  was  in  the  Circuit  Court  that  an 
attempt  was  made  to  avoid  its  exemptions  by  proving  the  facts  before 
stated,  as  to  the  receipt. 

18 


274  I'HE   MODERN   LAW   OF   CARRIERS. 

a  paper  expressing  merely  the  receipt  of  the  goods.  Bills 
of  lading  were  afterwards  made  out  at  the  carrier's  office, 
and  forwarded  to  the  shipper,  or  occasionally  to  the  con- 
signee. It  was  contended  that  bills  of  lading,  so  for- 
warded, were  ineffective,  because  the  contract  was  com- 
plete when  the  goods  were  delivered  and  the  receipt  given. 
In  reply  the  carrier  proved  that  the  usage  of  business  was 
to  treat  these  receipts  as  mere  vouchers  which  entitled 
the  shipper  to  receive  bills  of  lading  for  the  goods  men- 
tioned in  the  receipt.  On  proof  of  such  usage  it  was  held 
that  the  carrier  had  received  the  goods  upon  the  terms 
specified  in  the  usual  bills  of  lading. 

When  this  question  first  arose,  in  order  to  guard 
against  the  allegation  by  the  shipper  that  the  bill  of  lad- 
ing was  not  accepted  by  him,  and  also  to  avoid  delay  and 
facilitate  the  transaction  of  business,  many  carriers  adopted 
the  practice  of  delivering  a  shipping  receipt  at  the  time  of 
shipment  stating  that  the  goods  would  be  forwarded  sub- 
ject to  the  conditions  in  bills  of  lading,  to  be  afterwards 
delivered.  In  such  case  the  shipper  is  bound  by  the  con- 
ditions and  terms  of  the  bill  of  lading.^ 

SECTION   II. 

AUTHORITY   SHIPPING  AGENT. 

An  agent  who  is  employed  by  the  owner  of  goods  to 
procure  them  to  be  transported  by  a  common  carrier  has 
general  and  implied  authority  to  make  an  agreement  with 

1  Wilde  V.  The  Merch.  Despatch  Trans.  Co  ,  47  Iowa,  272  (1877)  ; 
Chicago  &  N.  W.  R.  Co.  v.  Montfort,  60  111.  175  (1871),  appears  op- 
posed to  the  statement  in  the  text  ;  but  the  circumstances  there  were 
peculiar.  The  drayman,  to  whom  the  original  receipt  was  delivered, 
two  or  three  days  after  the  goods  were  shipped,  asked  for  a  duplicate 
receipt  to  send  to  the  consignee.  The  court  held  that  the  shipper  was 
not  bound  by  limitations  inserted  in  a  paper,  not  a  duplicate  of  the 
original,  thereupon  delivered  to  the  drayman.  See  further  cases  in 
Chapter  X,  sect.  2,  pp.  225-233. 


AUTHORITY   SHIPPING   AGENT.  275 

the  carrier  as  to  the  terms  upon  which  the  goods  are  to  be 
transported/ 

If  the  carman  employed  to  deliver  the  goods  to  the 
carrier,  signs  a  contract  limiting  the  carrier's  liability  and 
providing  that  any  objection  to  the  contract  should  be  im- 
mediately made  to  the  freight  agent,  and  further  agrees 
that  the  goods  shall  be  retained  for  a  day  in  order  to  give 
opportunity  for  such  dissent,  if  none  is  made  acceptance 
by  the  carman's  employer  is  established.^  It  is  apparent, 
however,  that  the  circumstances  under  which  the  author- 
ity was  given  and  the  extent  of  this  authority  may  modify 
the  general  rule.  Thus,  when  at  the  shipper's  request 
the  agent  of  the  carrier  went  to  another  town,  procured 
government  orders  on  the  warehouse  where  the  goods 
were  stored,  obtained  the  goods  and  shipped  them  without 
issuing  any  bill  of  lading,  it  was  held  that  he  was  not 


1  York  Co.  V.  Central  R.  R.,  3  Wall.  107  (1865)  ;  Squire  v.  N.  Y. 
Central  R.  R.,  98  Mass.  239  (1867);  Nelson  v.  Hudson  R.  R.  R.,  48  N. 
Y.  498  (1872)  ;  Meyer  v.  Harnden's  Ex.  Co.,  24  How.  Pr.  (N.  Y.)  290 
(1862)  ;  s.  c,  sub  nom.  Moriarty  v.  The  Same,  i  Daly  (N.  Y.),  227 
{1862);  Shelton  v.  Merchants'  Trans.  Co.,  36  N.  Y.  Superior  Ct.  527 
(1873).  In  the  latter  case,  however,  it  was  held  that  after  the  shipment 
was  completed  the  authority  of  the  agent  terminated,  and  he  could  no 
longer  bind  the  owner  by  the  acceptance  of  a  contract  limiting  the  car- 
rier's liability.  It  has  been  held  otherwise  in  Illinois,  and  that  the 
authority  to  contract  for  a  limitation  of  the  carrier's  liability  must  be 
express.     Merchants'  Dispatch  Co.  v.  Joestings,  89  111.  152  (1878). 

See,  however,  Illinois  Central  R.  R.  z'.  Jonte,  13  Bradw.  (III.  App.) 
424  (1883),  in  which  the  rule  stated  in  the  text  is  laid  down  distinctly 
by  the  court. 

^  Nelson  v.  Hudson  R.  R.  R.,  48  N.  Y.  498  (1872).  In  this  case 
the  provisions  of  the  contract  excluded  all  liability  for  injury,  except 
that  caused  by  the  carrier's  negligence.  These  provisions  though  usual 
in  the  case  of  goods  of  the  description  shipped  (a  large  mirror)  were 
unusual  in  relation  to  other  goods,  and  for  this  reason,  no  doubt,  the 
evidence  as  to  acceptance  was  so  full.  But  in  The  May  Queen,  i  Newb. 
Adm.  464  (1854),  when  the  manufacturer  of  glass  show  cases  himself 
delivered  them  on  board,  and  was  told  that  the  ship  was  not  responsi- 
ble for  breakage,  he  being  neither  the  shipper,  owner  or  consignor  of 
the  goods,  it  was  held  that  he  was  not  an  agent  authorized  to  make  a 
special  contract,  or  at  least  that  this  proof  did  not  establish  an  author- 
ized contract,  of  limitation. 


276         THE  MODERN  LAW  OF  CARRIERS. 

the  agent  of  the  shipper  to  bind  the  latter  by  the  terms  of 
the  bill  of  lading  ordinarily  issued  by  the  carrier.^ 

So,  too,  a  shipper  is  not  bound  by  the  conditions  in  a 
bill  of  lading  issued  to  a  mere  drayman,  if  the  shipper 
protests  against  them  as  soon  as  known. ^  But  the  drover 
who  is  in  charge  of  stock,  and  the  only  person  with  whom 
a  connecting  carrier  can  make  terms,  is  authorized  to 
make  a  contract  of  limitation  to  bind  the  owner.^  Again 
where  goods  are  shipped  to  market  for  sale  pursuant  to  a 
custom  by  which  the  carrier  returns  empty  tubs  and 
baskets  free,  a  local  carrier  at  the  market  place,  employed 
by  both  shipper  and  carrier,  who  collects  the  empty  tubs, 
&c.,  is  authorized  to  sign  a  contract  limiting  the  liability 
of  the  carrier  for  injuries  to  the  tubs.* 

SECTION    III. 
CONTRACTS   WITH   CONNECTING   LINES. 

Contracts  are  constantly  being  made  under  which  a 
carrier  receives  goods  for  transportation  beyond  the  limits 
of  his  own  line.  In  some  cases  the  first  carrier  agrees 
that  the  goods  shall  be  transported  to  their  place  of  des- 
tination. In  others  the  carrier's  contract  is  simply  to  de- 
liver the  goods  to  the  next  connecting  line,  in  order  that 
this  line  may  transport  them.  In  the  latter  class  of  cases 
the  question  has  arisen  whether  the  first  carrier  has 
authority  to  contract  with  the  second  that  the  second  be 
exempt  from  any  part  of  his  common  law  liability.    Allen, 

*  Clyde  V.  Graver,  54  Penn.  251  (1867). 

'  Seller  dr^i-/.  The  Pacific,  I  Oregon,  409  (1861)  ;  s.  c.  i  Deady's  Adm. 
Rep.  17. 

3  Squire  v.  N.  Y.  Central  R.  R.,  98  Mass.  239  (1867).' 

♦  Aldridge  v.  The  Great  Western  R.  Co.,  15  C  B.  (N.  S.)  582  (1864)' 
In  this  case  the  shipper  had  little  choice  in  the  selection  of  the  local 
carrier  who  was  held  to  be  his  agent.  But  this  was  really  immaterial. 
He  adopted  and  recognized  the  employment. 


CONTRACTS   WITH    CONNECTING   LINES.  277 

J.,  in  Babcock  v.  Lake  Shore  &  Mich.  S.  R.  Co.,  ^  said  that 
the  first  carrier  had  no  such  authority.  But  the  facts  of 
that  case  did  not  require  this  proposition  to  be  adjudged. 
No  special  contract  was  made  by  the  first  carrier  with  the 
second.  There  was  a  provision  in  the  shipper's  contract 
with  the  first  carrier  limiting  its  liability,  by  excepting 
loss  by  fire.  There  were  general  words  in  the  printed 
form  which  would  have  extended  the  benefit  of  this  ex- 
emption to  all  connecting  lines.  The  court  held  that 
these  were  controlled  by  the  written  part  of  the  contract 
which  was  plainly  for  transportation  over  the  first  carrier's 
line  and  for  delivery  to  the  second  carrier,  and  no  more.^ 
No  reason  is  perceived  why  the  rule  that  the  agent  to 
ship  has  an  implied  authority  to  contract  respecting  the 
terms  of  shipment,  which  was  laid  down  in  Nelson  v. 
Hudson  R.  R.  R.,  ^  would  not  be  applicable  to  the  case  of 
a  contract  made  by  the  first  carrier  with  the  connecting 
carrier  limiting  the  latter's  liability.  The  first  carrier  is 
certainly  employed  by  the  owner  to  deliver  the  goods  to 
the  second  carrier,  just  as  plainly  as  a  carman  is  employed 
by  the  merchant,  and  if  one  can  assent  to  the  terms  of  a 
contract  of  limitation,  why  not  the  other  ? 

In  Lamb  v.  Camden  &  Amboy  R.  R.,"*  the  same  court 
held  that  the  first  carrier,  who  received  goods  in  Illinois 
to  be  transported  to  New  York,  but  did  not  contract  for 
their  transportation  beyond  its   own  line,   could  make  a 


1  Babcock  v.  Lake  Shore  &  M.  S.  R.  Co.,  49  N.  Y.  491  (1872). 

"^  There  was  no  agreement  for  a  through  rate  of  freight.  The  court 
say,  at  p.  497  :  "  There  was  no  consideration  for  an  agreement  by  the 
plaintiff  to  relieve  the  carriers  who  should  thereafter  receive  the  prop- 
erty for  transportation,  from  the  common  law  liabilities,  and  no  such 
agreement  was  made."  Taylor  v.  Little  Rock,  M.  &  T.  R.  R.,  39  Ark. 
148  (1882).  In  the  latter  case  also,  no  through  rate  of  freight  was 
agreed  upon.  The  court  said  that  if  there  had  been,  the  exemption 
might  have  been  valid. 

'  Nelson  v.  Hudson  R.  R.  R.,  48  N.  Y.  498  (1872). 

"  Lamb  v.  Camden  &  A.  R.  R.,  46  N.  Y.  271  (187  i). 


a  78  THE    MODERN   LAW   OF   CARRIERS. 

contract  with  the  second  carrier,  containing  the  same  ex- 
ceptions as  those  in  the  original  contract  and  no  other. 
It  was  also  held  that  on  the  proper  construction  of  the 
original  contract  which  fixed  the  rate  for  the  through 
freight,  it  was  the  shipper's  agreement  that  the  carriers 
throughout  should  be  exempted  from  loss  by  fire.  In  this 
case  the  words  "  not  liable  for  fire  "  were  written  across 
the  face  of  the  receipt.^ 

It  may  justly  be  said  that  the  terms  of  the  original 
contract  express  the  terms  on  which  the  shipper  is  willing 
to  contract  with  connecting  lines,  and  thus  constitute  a 
limitation  to  which  these  lines  assent  by  receiving  the 
goods,  and  to  which  the  shipper  assents  by  accepting  the 
contract.  The  proposition  thus  stated  is  supported  by 
authority  of  weight,  ^  and  is  believed  to  rest  on  the  sound 
foundation  of  principle. 

*  See  Lamb  v.  Camden  &  A.  R.  R.,  in  Common  Pleas,  2  Daly, 
454  (1869). 

^  Railroad  Co.  v.  Androscoggin  Mills,  22  Wall.  594  (1874);  Levy  v. 
Southern  Express  Co.,  4  S.  Car.  234  (1872).  See  Manhattan  Oil  Co. 
V.  Camden  &  Amboy  R.  R.,  52  Barb.  (N.  Y.)  72  (1872);  aff'd.  54  N.  Y. 
197  (1873);  Whitworth  v.  Erie  R.  Co.,  45  N.  Y.  Superior  Ct.  602  (1879); 
aff'd  87  N.  Y.  414  (1882).  In  this  latter  case  it  was  distinctly  held  that 
the  contract  was  several  and  not  joint,  each  carrier  being  liable  only  for 
transportation  over  its  own  line  and  delivery  to  the  next.  But  the  con- 
necting carrier  was  nevertheless  held  entitled  to  the  benefit  of  the 
clauses  of  exemption  contained  in  the  contract.  These,  by  the  terms 
of  the  contract,  were  applicable  to  the  connecting  carriers.  In  the 
Androscoggin  case  the  carrier  delivered  to  the  shipper  a  through  bill  of 
lading,  containing  the  words:  "The  Evansviile  and  Crawfordsville 
Railroad  Company  will  not  be  liable  for  loss  or  damage  by  fire  from  any 
cause  whatever."  The  goods  were  destroyed  by  fire,  but  not  upon  the 
line  of  the  contracting  carrier.  In  a  suit  against  that  carrier,  it  was 
held  that  the  exemption  applied  to  the  whole  route,  and  was  valid. 

In  the  Levy  case  there  was  an  express  authority  contained  in  the 
contract  with  the  first  carrier  to  deliver  to  a  connecting  carrier,  and  an 
express  agreement  that  all  the  stipulations  in  the  contract  should  enure 
to  the  benefit  of  connecting  lines.  The  Court  said  :  "  As  between  the 
Adams  Express  Co.  (the  first  carrier)  and  the  owner,  the  terms  of  the 
bill  of  lading  are  to  be  regarded  as  modifying  in  certain  particulars  the 
common  law  liability  of  the  company  as  common  carriers.  The  shipper 
having  authority  to  ship  must  be  regarded  as  authorized  to  bind  the 
owner  by  a  contract  containing  special  terms  of  shipment.     Adams  Ex- 


CONTRACTS   WITH   CONNECTING   LINES.  279 

It  has  been  held  in  analogy  to  the  rule  stated  in  a 
previous  chapter^  that  a  notice  from  the  second  carrier  to 
the  first,  as  to  the  terms  on  which  it  would  accept  goods 
for  transportation,  is  not  sufficient  to  limit  its  liability  for 
goods  received  by  it  from  the  first  carrier,  and  generally 
accepted  without  any  contract  at  the  time  of  such  receipt, 
other  than  that  implied  by  law.^  This  was  on  the  ground 
that  a  mere  notice  was  insufficient  to  limit  the  carrier's 
liability.  But,  no  doubt,  a  general  contract  between  the 
two  carriers  as  to  the  terms  upon  which  all  shipments 
would  be  made  and  received  would  be  as  effective  as  a 
special  contract  at  the  time  of  each  delivery.  In  the  ab- 
sence of  a  contract  between  the  two  carriers,  if  the  agree- 
ment with  the  first  carrier  provides  only  for  transportation 
to  the  terminus  of  his  line  and  delivery  to  the  second,  and 
has  no  stipulation  which  can  be  construed  to  apply  to  the 
entire  transit,  the  second  carrier  cannot  avail  himself  of 
limitations  in  the  contract  with  the  first.^ 

press  Co.  had  express  authority  to  employ  the  defendants  as  common  car- 
riers, and  to  fix  the  terms  of  the  contract  in  conformity  with  the  terms 
stipulated  between  the  shipper  and  themselves.  It  is  to  be  presumed,  as 
the  case  stands,  that  the  defendants  accepted  the  trunk  on  the  terms  of 
the  original  bill  of  lading,  and  such  acceptance  is  accordingly  special  and 
subject  to  such  terms." 

^  Afite,  Chap.  X,  p.  221. 

2  Judson  V.  Western  R.  R.,  6  Allen  (Mass.),  486  (1863);  Adams  Ex. 
Co.  V.  Harris  (Ind.),  21  N.  E.  Rep.  340  (1889). 

^  Camden  &  Amboy  R.  R.  v.  Forsyth,  61  Penn.  8t  (1869);  ^tna 
Ins.  Co.  V.  Wheeler,  49  N.  Y.  6t6  (1872);  aff'g.  s.  c.  5  Lansing,  480 
(1871);  Babcock  v.  Lake  Shore  &  M.  S.  R.  Co.,  49  N.  Y.  491  (1872); 
Merchants'  Trans.  Co.  v.  Bolles,  80  111.  473  (1875);  Southern  Express  Co. 
V.  Urquhart,  52  Ga.  142  (1874);  Ed  all  Z'.  Camden  &  A.  R.  R.,  50  N. 
Y.  66i  (1872).  In  The  Forsyth  case  the  rate  for  through  freight  was 
noted  on  the  margin  of  the  contract,  but  this  was  held  not  to  make  it  a 
through  contract.  The  connecting  carrier  gave  a  receipt  to  the  first 
carrier,  but  issued  no  bill  of  lading  and  made  no  special  contract.  In 
The  JPAnSi  Ins.  Co.  case,  the  agreement  with  the  first  carrier  was  in  terms 
to  deliver  ''unio  consignees  at  Ogdensburgh  "  (the  terminus  of  its  line). 
The  goods  were  marked  for  Boston  and  a  through  rate  of  freight  agreed 
upon,  but  the  contract  in  all  other  respects  was  silent  as  to  the  terms 
upon  which  the  goods  should  be  carried  by  the  connecting  line. 

In  Tlie  Bolles  case  the  Court  say:  "  It  is  only  where  the  contract  is 


28o        THE  MODERN  LAW  OF  CARRIERS. 

The  rule  on  this  subject  is  further  illustrated  by  ref- 
erence to  a  New  York  decision.  A  shipper  delivered  oil 
to  a  carrier  to  be  transported  to  a  point  beyond  its  line. 
No  agreement  limiting  the  carrier's  liability  was  made. 
The  connecting  carrier  on  receiving  the  oil  gave  to  the 
first  carrier  a  receipt  with  the  clause  appended,  "  Owners' 
risk  F.  and  L."  The  goods  were  destroyed  by  fire  while 
being  transported  by  the  second  carrier.  It  was  shown 
that  these  letters  were  commonly  understood  in  the  trade 
to  mean  fire  and  leakage,  and  the  court  held  this  evidence 
admissible,  and  that  the  first  carrier  was  the  shipper's 
agent  to  deliver  the  oil  to  the  connecting  carrier ;  that  the 
latter  had  a  right  to  contract  with  such  agent  for  the  lim- 
itation of  its  own  liability,  and  that  the  delivery  of  the 
receipt  in  question  effected  such  limitation.^ 

It  must  be  admitted  that  the  authority  of  this  case  is 
somewhat  impaired  by  the  dictum  of  Allen,  J.,  before  re- 
ferred to.  It  cannot  be  claimed  that  the  result  of  these 
cases  is  to  leave  the  law  on  this  important  subject  in  a 
very  satisfactory  condition. 

So  far  as  through  contracts  for  the  transportation  of 
goods  are  concerned,  there  is  no  question  that  the  last  car- 
rier is  entitled  to  all  the  benefits  of  the  exemptiom  from 
liability  contained  in  the  through  bill  of  lading  under 
which  the  goods  are  transported,  even  though  the  bill  of 


for  through  transportation  that  each  connecting  carrier  will  be  entitled 
to  the  benefits  and  exemptions  of  the  contract  between  the  shipper  and 
the  first  carrier." 

In  The  Urquhart  case  the  court  held  that  in  the  absence  of  proof  as 
to  the  terms  upon  which  the  connecting  carrier  received  the  goods  from 
the  first  carrier,  the  connecting  carrier  should  be  presumed  to  have  re- 
ceived them  for  transportation  to  the  owner  under  such  obligations  as 
to  diligence,  &c.,  as  the  law  imposes  on  common  carriers,  who  do  not, 
by  contract,  limit  their  liability. 

1  Hinkley  v.  N.  Y.  Central  &  H.  R.  R.  R.  3  Thomps.  &  Cook  (N. 
Y.),  281  (1874);  Alabama  &  Gt.  S.  R.  Co.  v.  Thomas,  3  So.  Rep.  802 
(1888),  Ala. 


CONTRACTS  WITH   CONNECTING   LINES.  28 1 

lading  expressly  provides  that  each  carrier  shall  be  liable 
only  for  losses  occurring  on  its  own  line.^ 

^  Bristol  &  Exeter  R.  Co.  v.  Collins,  7  House  of  Lords,  194  (1859), 
rev'g.  s.  c.  I  Hurlst.  &  N.  517  (1856);  Maghee  v.  Camden  &  Amboy 
R.  R.,  45  N.  Y.  514  (1871);  Manhattan  Oil  Co.  v.  Camden  &  Amboy 
R.  R.,  54  N.  Y.  197  (1873);  aff'g-  s-  c.  52  Barb.  72  (1868).  In  this  case 
a  through  contract  for  the  transportation  of  goods  was  made  by  a  car- 
rier, containing  a  clause  exempting  it  from  liability  "  for  loss  or  damage 
by  fire  or  other  casualty  while  in  depots  or  places  of  transhipment." 
Certain  other  exemptions  were  contained  therein  in  reference  to  which 
the  contract  made  express  provision  for  exemption  in  favor  of  connect- 
ing lines.  The  goods  were  received  by  defendant,  a  connecting  carrier, 
and  it  received  from  the  contracting  carrier  a  portion  of  the  freight. 
While  in  its  depot  the  goods  were  destroyed  by  fire.  The  court  said : 
"  The  oil  destroyed  by  fire,  the  value  of  which  is  the  subject  of  the  pres- 
ent controversy,  was  received  by  the  Union  Transportation  and  Insur- 
ance Company,  at  Cincinnati,  to  be  transported  by  that  company  to 
New  York  at  a  stated  price  for  the  whole  route,  arid  upon  certain  con- 
ditions, one  of  which  was  that  the  company  should  not  be  liable  for 
damages  or  loss  by  fire,  or  other  casualty  which  should  occur  to  the  oil 
while  in  depots  or  in  places  of  transhipment.  Under  this  contract  that 
company  would  undoubtedly  have  been  liable  had  the  oil  been  dam- 
aged or  destroyed  while  on  defendant's  road  or  boat,  by  any  of  the  perils 
hazarded  by  common  carriers  not  excepted  in  the  contract  for  its  trans- 
portation ;  and  it  is  equally  clear  that  if  the  action  had  been  brought 
against  that  company  to  recover  the  value  of  the  oil,  it  would  have  been 
shielded  by  the  exception  in  the  bill  of  lading.  .  .  .  The  plaintiff 
insists  that  the  defendant,  who  was  the  last  carrier  on  the  route  to  New 
York,  to  which  the  Union  Company  had  agreed  to  transport  it,  is  not  en- 
titled to  the  benefit  of  the  condition  referred  to,  upon  which  the  Union 
Company  agreed  to  carry  it  to  that  city.  The  contract  made  by  the 
Union  Company  was  for  a  service  to  be  performed,  not  only  for  a  com- 
pensation to  which  it  would  not  have  been  entitled  until  the  property 
had  been  transported  to  and  ready  for  delivery  in  New  York,  but  by  it 
that  company  would  have  incurred  a  liability  for  damage  to,  or  a  loss 
of  it,  had  not  the  loss  occurred  in  a  depot  or  place  of  transhipment. 
The  contract  having  been  made  by  that  company  for  the  transportation 
of  the  oil  from  Cincinnati  to  New  York  was,  including  the  condition 
referred  to,  commensurate  with  the  undertaking  to  transport  it  over  the 
whole  and  every  part  of  the  route.  Had  it  been  a  contract  which  did 
not  carry  the  liability  of  the  first  carrier  beyond  the  distance  traversed 
by  its  cars,  the  condition  could  not  avail  the  defendant  ;  but  as  it  is, 
the  defendant,  instead  of  being  the  party  who  contracted  with  the 
plaintiff,  was  aiding  the  first  carrier  in  performing  its  contract,  and  for 
a  compensation  to  be  equally  apportioned  and  paid  by  that  carrier,  to 
whom  the  defendant  was  but  a  subordinate,  and  shielded  by  the  condi- 
tion made  by  that  company  against  a  liability  for  loss  by  fire."  To  the 
same  effect  are  Oakey  v.  Gordon,  7  La.  Ann.  235  (1852);  Whitworth  v. 
Erie  R.  Co.,  45  N.  Y.  Superior  Ct.  602  (1879);  aff'd.  87  N.  Y.  414 
(1882);  U.  S.  Express  Co.  v.  Harris,  51  Ind.  127  (1875);  Kiff  v.  Atchi- 


2S2  THE   MODERN    LAW   OF   CARRIERS. 

It  does  not  fall  within  the  scope  of  this  work  to  con- 
sider in  detail  the  law  as  to  when  the  liability  of  the  first 
carrier  ceases,  nor  as  to  when  he  is  liable  for  injuries  oc- 
curring on  a  connecting  line. 

In  general  it  may  be  said  that  in  order  to  discharge 
himself  he  must  make  such  a  delivery  to  the  connecting 
line  as  he  should  make  if  the  place  of  consignment  was 
on  his  own  route.^     And  when  he  has  made  such  delivery 

son  T.  &  S.  R.  R.,  32  Kans.  263  (1884).  In  this  case  the  limitation  was 
effected  by  the  words  "  owner's  risk." 

In  Oakey  v.  Gordon,  the  carrier  owned  a  railroad  and  ran  a  steam- 
boat in  connection  with  it.  Cotton  was  shipped  under  a  bill  of  lading 
given  by  the  captain  of  the  boat,  binding  him  to  deliver  the  cotton  at  a 
station  on  the  railroad,  "  unavoidable  dangers  of  navigation  and  fire  " 
only  excepted.  The  cotton  was  destroyed  by  fire  issuing  from  the 
chimney  of  the  locomotive,  in  transit  to  New  Orleans.  Held,  that  the 
contract  to  carry  the  cotton  was  entire,  and  the  exception  in  the  bill  of 
lading  against  loss  by  fire  extended  as  well  to  loss  on  the  cars  as  on  the 
boat. 

On  the  other  hand,  if  there  be  no  exemption  provided  for  in  the 
through  contract,  the  contracting  carrier  is  liable  for  the  default  of  the 
connecting  line.  Toledo,  W.  &  W.  R.  Co.  v.  Lockhart,  71  111.  627 
(1874). 

In  Owen  z/.  Louisville  &  Nashville  R.  Co.,  9  S.  W.  Rep.  698  (1888), 
it  was  held  that  the  last  carrier  was  the  agent  of  the  first,  so  far  as  to 
bind  the  latter  by  a  waiver  of  a  condition  requiring  the  claim  to  be  pre- 
sented within  a  given  time. 

^  In  re  Peterson,  21  Fed.  Rep.  885  (1884);  Eaton  v.  Neumark,  33 
Fed.  R.  891  (1888);  Reed  v.  U.  S.  Ex.  Co.,  48  N.  Y.  462  (1872);  Mills 
V.  Mich.  Central  R.  R.,  45  N.  Y.  622  (1871);  Dunson  v.  N.  Y.  Central 
R.  R.,  3  Lansing  (N.  Y.),  265  (1870);  Wahl  v.  Holt,  26  Wis.  703 
(1870);  Mobile  &  Ohio  R.  R.  v.  Hopkins,  41  Ala.  486  (1868);  Lewis  v. 
Western  R.  R.,  11  Mete.  (Mass.)  509  (1846);  Louisville  &  N.  R.  R.  v. 
Campbell,  7  Heiskell  (Tenn.),253  (1872);  Lawrence  v.  Winona  &  St. 
P.  R.  R.,  15  Minn.  390  (1870);  Wood  v.  Milwaukee  &  St.  Paul  R.  Co., 
27  Wis.  541  (1871).  This  latter  case  was,  however,  expressly  overruled 
by  Conkey  v.  Milwaukee  &  St.  P.  R.  R.,  31  Wis.  619  (1872)  in  the  same 
court,  and  arising  out  of  the  same  occurrence.  In  the  former  it  was 
held  that  if  the  second  carrier  fail  to  accept  the  goods  after  a  reasonable 
time,  the  first  carrier  is  liable  only  as  warehouseman.  In  the  Conkey 
case,  it  was  held,  however,  that  the  carrier's  liability  as  such  continued 
till  the  goods  were  delivered  to  the  consignee.  It  was  said  that  the 
carrier,  in  whose  possession  the  goods  were  injured  or  lost,  suffered 
from  delay  in  receiving  them  by  a  succeeding  carrier,  he  might  have  a 
remedy  against  the  latter. 

In  Mills  ?7.  Michigan  Central  R.  R.,  45  N.  Y.  622  (1871),  it  was 
held  that  where  goods  are  received  by  a  carrier  for  transportation, 


CONTRACTS   WITH   CONNECTING   LINES.  283 

his  liability  ceases.  If  he  notify  the  next  connecting  car- 
rier that  he  is  ready  to  deliver  the  goods  to  him,  and  the 
latter,  after  a  reasonable  time,  neglects  to  receive  and 
remove  the  goods  from  the  custody  of  the  first  carrier ; 
they  may  then  be  warehoused  and  the  liability  of  the  first 
carrier  as  such  will  thereupon  cease,  and  he  will  be  liable 
as  warehouseman  only.^  In  such  case  the  first  carrier 
should  notify  the  shipper.^ 

marked  for  a  destination  beyond  the  terminus  of  such  carrier's  route, 
'the  manner  of  giving  notice  to  the  next  carrier  of  their  arrival  and 
readiness  for  dehvery,  and  the  length  of  time  which  is  reasonable  and 
must  elapse  before  the  first  carrier  is  relieved  from  his  carrier's  liability, 
are  regulated  by  existing  custom  between  them. 

Where  there  was  an  agreement  between  two  connecting  lines  that 
goods  should  not  be  regarded  as  transferred  until  the  freight  charges 
of  the  second  carrier  were  paid  or  secured,  held  that  although  the  goods 
had  actually  been  placed  in  the  second  carrier's  warehouse,  the  first 
carrier  was  not  discharged,  payment  not  having  been  made.  Palmer  v. 
Chicago  B.  &  Q.  R.  Co.,  13  Atl.  Rep.  (Conn.)  818  (1888);  compare  Ala- 
bama G.  S.  R.  R.  V.  Mt.  Vernon  Co.,  4  So.  Rep.  356  (1887);  84  Ala. 
173.  If  cattle  are  delivered  safely  to  connecting  line,  their  delivery  is 
good  though  they  are  transferred  to  unsafe  cars.  Alabama  G.  S.  R.  R. 
V.  Thomas,  3  So.  Rep.  802  (1888). 

1  Rawson  v.  Holland,  59  N.  Y.  611  (1875);  s.  c  47  How.  Pr.  (N. 
Y.)  292  (1874);  Inhabitants  t;.  Hall,  61  Me.  517  (1873);  Devillers  v. 
Bell,  6  La.  Ann.  544  (1851);  Dalzell  z;.  The  Saxon,  10  lb.  280  (1855). 
See  Condon  v.  Marquette,  H.  &  O.  R.  R.,  55  Mich.  218  ;  21  N.  W. 
Rep.  321  (1884).  The  general  rule  as  to  delivery  to  the  consignee  is 
the  same.  Faulkner  v.  Hart,  82  N.  Y.  413  (1880);  See,  also,  the  cases 
cited  in  Faulkner  v.  Hart,  and  the  Massachusetts  cases  to  the  contrary, 
also  therein  cited.  Fenner  v.  Buffalo  &  State  Line  R.  R.,  44  N.  Y.  505 
(1871),  does  not  conflict  with  the  rule  stated  in  the  text.  In  that  case 
the  Court  say  (p.  507):  "  It  is  well  settled  in  this  State  that  an  interme- 
diate carrier,  one  who  receives  goods  to  be  transported  over  his  route, 
■and  thence  by  other  carriers  to  their  place  of  destination,  generally  re- 
mains liable  as  a  common  carrier  until  he  has  delivered  the  goods  to  the 

^  Louisville  &  N.  R.  R.  v.  Campbell,  7  Heisk.  253  (1872);  Lesinsky 
V.  Great  W.  Disp.,  10  Mo.  App.  134  (1881).  In  In  re  Peterson,  21 
Fed.  Rep.  885  (1884),  it  was  held  that  where  the  second  carrier  notifies 
the  first  carrier  that  on  account  of  a  freight  blockade  it  cannot  receive 
the  goods,  the  liability  of  the  first  carrier  will  not  become  that  of  a 
warehouseman  if  the  first  carrier  fails  to  notify  the  shipper  and  give  the 
latter  opportunity  to  preserve  property.  And  as  to  delivery  to  consignee, 
see  Cliap.  XIV,  sect.  8,  post.  See  Dunn  v.  Hannibal  &  St.  J.  R.  R., 
68  Mo.  268  (1878). 


284  THE   MODERN   LAW   OF   CARRIERS. 

Depositing  goods  in  its  own  depot  is  not  sufficient  to 
relieve  the  carrier  from  its  common  law  liability/  It 
is  liable  for  injuries  done  to  person  or  property  on  a  con- 
necting line  when  it  has  made  a  contract  for  through 
transportation,  and  not  otherwise.^ 

next  carrier."  McDonald  v.  Western  R.  R.,  34  N.  Y.  497  (1866); 
Ladue  v-  Griffith,  25  N.  Y.  364  (1862);  Goold  v.  Chapin,  20  N.  Y.  266 
(1859);  Miller  z/.  Steam  Nav.  Co.,  10  N.  Y.  431  (1853).  In  none  of 
these  cases  except  Goold  v.  Chapin  had  a  reasonable  time  elapsed  for 
the  connecting  carrier  to  receive  and  remove  the  goods.  In  Goold  v. 
Chapin  the  connecting  carrier  had  notice  and  a  reasonable  time  to  re- 
move them,  and  had  failed  so  to  do;  but  the  carrier  still  retained  them 
on  the  float  on  which  they  had  been  discharged.  The  court  held  that 
the  liability  of  the  carrier  as  such  still  continued.  In  both  the  prevail- 
ing opinions  it  is  conceded  that  if  the  goods  had  been  removed  to  a 
warehouse,  because  of  the  delay  on  the  part  of  the  next  carrier,  the  lia- 
bility of  the  preceding  carrier  as  such  would  have  terminated.  See 
pp.  264,  267.  It  was,  however,  held  otherwise  in  Bancroft  v.  Mer 
chants'  Desp.  Co.,  47  Iowa,  262  (1877);  Illinois  Central  R.  R.  v.  Mit- 
chell, 68  111.  471(1873). 

^  Railroad  Company  v.  Manufacturing  Co.,  16  Wall.  318  (1872); 
See  cases  cited,  ante,  p.  283,  n.  2. 

2  Myrick  v.  Michigan  Central  R.  R.,  107  U.  S.  102  (1882);  Insur- 
ance Co.  V.  R.  R.  Co.,  104  U.  S.  146  (1881);  Barter  v.  Wheeler,  49  N. 
H.  9  (1869);  Parmelee  v.  Western  Trans.  Co.,  26  Wis.  439  (1870); 
Green  v.  N.  Y.  Central  R.  R.,  12  Abb.  N.  S.  (N.  Y.)  473  (1872);  Root 
V.  Great  Western  R.  R.,  45  N.  Y.  524  (187 1);  rev'g.  s.  c.  2  Lans.  199 
(1869);  Hunt  V.  N.  Y.  &  Erie  R.  R.,  i  Hilt.  (N.  Y.)  228  (1856);  Dillon 
V.  N.  Y.  &  Erie  R.  R.,  Ibid,  231  (1856);  Weil  v.  Merchant's  D.  &  T. 
Co.,  7  Daly  (N.  Y.),  456  (1878);  Jacobs  v.  Hooker,  i  Edmonds  (N.  Y.), 
472  (1847);  Manhattan  Oil  Co.  v.  Camden  &  Amboy  R.  R.,  52  Barb. 
(N.  Y.)  72;  s.  c.  5  Abb.  Pr.  R.  (N.  S.)  289  (1868);  aff'd.  54  N.  Y.  197 
{1873);  Babcock  v.  Lake  Shore  &  M.  S.  R.  Co.,  49  N.  Y.  491  (1872); 
Rawson  v.  Holland,  59  N.  Y.  611  (1875);  Toledo,  W.  &.  W.  R.  Co.  v. 
Lockhart,  71  111.  627  (1874);  Cutts  v.  Brainerd,  42  Vt.  556  (1870);  111. 
Central  R.  R.  v.  Copeland,  24  111.  332  (i860);  Illinois  Central  R.  R.  v. 
Frankenberg,  54  111.  88  (1870);  Adams  Ex.  Co.  v.  Wilson,  81  Ibid,  339 
(1876);  McCannz^.  Baltimore  &  Ohio  R.  R.,  20  Md.  202  (1863);  Balti- 
more &  Ohio  R.  R.  V.  Schumacher,  29  Md.  168  (1868);  McMillan  v. 
Mich.  S.  &N.  I.  R.  R.,i6  Mich.  79(1867);  Lowell  Wire  Fence  Co.  v.  Sar- 
gent, 8  Allen  (Mass.),  189  (1864);  Hill  Manufacturing  Co.  v.  Boston 
&  L.  R.  R.  Co.,  104  Mass.  122  (1870);  Newell  v.  Smith,  49  Vt.  255 
(1876);  Hadd  V.  U.  S.  &  Canada  Express  Co.,  52  Vt.  335  (1880);  Cra\r- 
ford  V.  Southern  R.  R.  Ass'n,  51  Miss.  222  (1875);  Skinner  v.  Hall,  60 
Me.  477  (1872);  Halliday  w.  St.  Louis,  K.  &  N.  R.  Co.,  74  Mo.  159 
(1881);  s.  c.  41  Am.  Rep.  309  ;  Ortt  v.  Minneapolis  &  St.  L.  Ry.  Co., 
36  Minn.  396  (1887). 

The  making  of  a  through  contract  will  not  be  inferred  from  the  re- 


CONTRACTS    WITH    CONNECTING    LINES.  285 

The  validity  of  contracts  for  the  transportation  of 
freight  beyond  the  terminus  of  the  contracting  carrier's 

ception  by  the  first  carrier  of  goods  marked  for  a  place  beyond  the  ter- 
minus of  its  own  line.  Myrick  v.  Michigan  Central  R.  R.,  107  U.  S. 
102  (1882).  Where  the  bill  of  lading  contains  a  stipulation  that  no  one 
of  the  connecting  carriers  composing  a  through  line  shall  be  liable  for 
any  injury  not  occurring  on  his  portion  of  the  entire  route,  this  is  bind- 
ing on  the  shipper,  and  he  cannot  recover  against  the  first  carrier  for  a 
loss  occurring  on  the  line  of  another,  if  the  occurrence  of  the  loss  is  not 
due  to  delay  on  the  part  of  the  first  carrier.  Schiff  v.  New  York  Cen- 
tral &  H.  R.  R.  R.,  52  How.  Pr.  (N.  Y.)  91  (1876);  Tardos  v.  Chicago, 
S.  &  L.,  &  N.  O.  R.  R.,  35  La.  Ann.  15  (1883).  In  this  latter  case  the 
first  carrier  guaranteed  the  through  rate,  and  the  connecting  line  refused 
to  recognize  this.  It  was  held  that  the  contracting  carrier  was  entitled 
to  notice  of  this  refusal,  and  in  the  absence  of  such  notice  was  liable  to 
the  shipper  only  for  the  difference  between  the  rate  exacted  and  the 
guaranteed  rate. 

In  Sumner  v.  Walker,  30  Fed.  Rep.  261  (1887),  Brown,  J.,  thus  states 
the  law  :  "  Each  carrier  on  a  through  bill  of  lading  or  on  connecting 
lines  is  liable  only  for  the  negligence  that  arises  on  his  own  line,  unless 
some  different  understanding  be  shown  or  circumstances  from  which 
such  an  understanding  should  be  inferred."  Railroad  v.  Androscoggin 
Mills,  22  Wall.  594  (1874);  Railroad  v.  Pratt,  22  Wall.  123  (1874);  s.  c. 
95  U.  S.  43  (1877);  Harding  v.  International  Nav.  Co.,  12  Fed.  Rep. 
168  (1882).  In  Darling  v.  Boston  &  Worcester  R.  R.,  93  Mass.  295 
(1865),  it  was  held  that  in  the  absence  of  usage  or  contract  the  carrier 
is  bound  only  to  carry  goods  over  its  own  route.  If  it  deliver  to  a  cus- 
tomary or  prescribed  connecting  carrier  its  liability  is  discharged.  It 
may  contract  to  carry  further  ;  otherwise  the  arrangement  between  con- 
necting lines  would  control.  In  the  same  case  it  was  also  held  that  the 
last  carrier  who  delivers  the  goods  and  collects  all  the  freight  is  not,  in 
the  absence  of  agreement,  liable  for  damages  on  previous  lines. 

A  carrier  which  agrees  to  transport  goods  beyond  its  line  under- 
takes to  transport  them  to  their  destination  by  itself  or  competent 
agents,  and  if  they  are  lost  beyond  its  line,  it  is  liable.  A  statute  pro- 
vided that  each  company  should  be  responsible  only  to  its  own  terminus, 
and  that  the  last  company  which  received  the  goods  "  in  good  order  " 
should  be  responsible  to  the  consignee.  It  was  held  that  this  did  not 
change  this  common  law  rule  except  by  giving  a  remedy  against  the  last 
carrier.  Falvey  v.  Georgia  R.  R.,  76  Ga.  597  (1886);  overruling  Baugh 
V.  McDaniel,  42  Ga.  641  (1871).  Where  the  evidence  showed  that  dam- 
age occurred  before  the  goods  reached  the  last  carrier,  it  is  error  to 
charge  in  the  language  of  this  statute.  Columbus  &  W.  R.  Co.  v.  Till- 
man, 5  S.  E.  Rep.  135  (1888). 

A  statute  prescribed  that  "  where  two  railroads  are  connected  to- 
gether, the  first  railroad  receiving  freight  should  be  liable  for  loss  or 
injury  on  the  route."  It  was  held  that  a  mere  mechanical  connection 
was  not  meant — that  it  must  be  a  business  connection.  Laws  of  N.  Y., 
1847,  chap.  270;  Colby's  New  R.  R.  Laws,  p.  270,  Root  v.  Great  West- 
ern R.  R.,  45  N.  Y.  524  (1871). 


286  THE   MODERN   LAW   OF   CARRIERS. 

route  was  at  one  time  doubted,  but  is  now  well  settled/ 
and  the  shipper  may  always  affirm  a  contract  with  a  con- 
necting carrier.^ 

The  previous  observations  in  this  section  refer  only  to 
contracts  for  the  tranportation  of  freight.  In  reference 
to  contracts  for  the  transportation  of  passengers,  it  is  held 
that  a  carrier  who  is  authorized  by  connecting  lines  to  sell 
through  tickets  for  transportation  over  the  several  lines 
is  the  agent  of  the  several  lines  for  the  purpose  of  making 
the  contract  of  transportation.  It  follows  that  each  com- 
pany, for  transportation  over  whose  line  the  contract  is 
made,  is  bound  to  transport  the  person  to  whom  the 
through  ticket  is  sold,  upon  his  presenting  the  ticket  in 
accordance  with  its  terms,  and  that  each  line  is  bound  by 
the  representations  of  the  line  selling  the  ticket  as  to 
privileges  of  breaking  the  journey  j*^  and  if  the  first  car- 
rier makes  a  contract  to  transport  a  passenger  through  to 
a  point  beyond  the  terminus  of  its  own  line,  the  liability 
of  the  contracting  carrier  will  not  be  limited  by  agree- 
ments with  the  connecting  lin^  of  which  the  passenger 
has  no  notice.^ 

A  statute  provided  that  the  last  of  several  connecting  carriers  should 
be  liable  for  loss  of  goods  delivered  to  the  first  for  transportation. 
Goods  being  billed  from  Boston  to  Atlanta,  the  railroad  running  into 
Atlanta  was  held  to  be  the  last  carrier,  and  to  be  liable  for  the  loss  of 
the  goods,  although  it  had  delivered  them  to  another  local  railroad  for 
delivery  in  the  city.  Georgia  Code,  sect.  2084  ;  Western  &  A.  R.  Co. 
V.  Exposition  Cotton  Mills,  7  S.  E.  Rep.  916  (1888);  Central  R.  R.  v. 
Avant,  5  S.  E.  Rep.  (Ga.)  78  (1888);  Washmgton  v.  Raleigh  &  G.  R.  Co., 
7  S.  E.  Rep.  (N.  C.)  789  (1888);  Block  v.  Merch.  Desp.  Trans.  Co.,  6  S. 
W.  Rep.  881  (1888). 

1  Swift  -.'.  Pacific  Mail  S.  S.  Co.,  7  Central  Rep.  (N.  Y.)  811  (1887); 
s.  c.  106  N.  Y.  201  ;  Railroad  Co.  v.  Pratt,  22  Wall.  (U.  S.)  124  (1874). 

'■'  Sanderson  v.  Lambertson,  6  Binn.  (Pa.)  129  (1813). 

'.  Young  z;.  Penn.  R.  R.,  5  Central  Rep.  848;  s.  c.  115  Penn.  112 
(1887). 

*  Little  V.  Dusenberry,  46  N.  J,  (Law).  614  (1884).  In  Central  R. 
R.  V.  Combs,  70  Ga.  533  ;  s.  c.  48  Am.  Rep.  582  (1883),  it  was  held 
that  the  liability  of  the  contracting  carrier  who  has  made  such  a  through 
contract,  is  not  limited  by  a  provision  printed  upon  the  ticket  that  each 


CONTRACTS   WITH   CONNECTING   LINES.  287 

And  a  carrier  selected  by  the  person  to  whom  the 
goods  are  addressed,  to  receive  the  goods,  is  not  a  con- 
necting carrier  and  not  liable  to  the  holder  of  the  bill  of 
lading,  though  the  person  employing  him  had  no  title  to 
the  goods. ^ 

of  the  carriers  composing  the  through  line  should  be  liable  only  for  in- 
juries occurring  upon  its  own  route.  But  the  circumstances  of  this  case 
were  peculiar.  The  damage  sued  for  was  occasioned  by  the  failure  of 
the  connecting  line  to  transport  the  passenger  at  all.  It  had  stopped 
running  its  cars,  owing  to  the  prevalence  of  yellow  fever.  The  carrier 
selling  the  through  ticket  was  held  liable  for  the  expense  and  trouble 
caused  to  the  passenger  by  his  detention  at  the  connecting  point.  The 
view  taken  by  a  court  of  this  general  question  would  in  part  depend 
upon  whether  it  treated  the  ticket  as  a  contract,  or  merely  a  voucher 
for  the  payment  of  fare.     See  Chap.  X,  sect.  2,  p.  230. 

^  Nanson  v.  Jacob,  6  S.  W.  Rep.  246 ;  s.  c  93  Mo.  331  (1887). 


CHAPTER    XIV. 

CONSTRUCTION   OF   PARTICULAR   CLAUSES   IN   BILLS   OF 

LADING. 


SECTION   I. 
RECEIVED   IN   GOOD   ORDER. 

Contracts  between  the  carrier  and  the  shipper  almost 
invariably  begin  with  an  acknowledgment  that  the  carrier 
has  received  certain  merchandise.  Then  follow  the  stip- 
ulations expressing  the  contract  between  the  parties. 
But  whatever  the  form,  if  the  instrument  delivered  by  the 
carrier  to  the  shipper  contain  language  sufficient  to  show 
that  the  carrier  agrees  with  the  shipper  to  transport  cer- 
tain goods  therein  described  from  one  place  to  another  for 
a  consideration  therein  specified,  the  instrument  will  be  a 
bill  of  lading.^ 

Where  the  bill  of  lading  contains  the  usual  acknowl- 
edgment that  the  goods  were  received  in  good  order,  and 
the  words  ''  contents  and  value  unknown,''  are  omitted,  the 
presumption  is  that  not  only  the  package  but  the  goods 
themselves  were  in  good  order  when  received.  The  bur- 
den of  proof  in  such  case,  if  they  fail  to  arrive  at  the  port 
of  destination  in  good  condition,  is  upon  the  carrier,  and 
he  must  show  that  the  injury  happened  before  the  goods 
came  to  his  hands.^ 


*  Dows  V.  Perrin,  i6  N.  Y.  325  (1857);  Dows  v.  Rush,  28  Barb.  (N. 
Y.)  157  (1858);  ante,  p.  231. 

'  The  Historian,  28  Fed.  Rep.  336  (1886):  The  Zone,  2  Sprague,  19 
(i860);  The  Martha,  Olcott,  40  (1845);  Price  v.  Powell,  3  N.  Y.  322 
(1850);  Nelson  v.  Stephenson,  5  Duer  (N.  Y.),  538  (1856).     In  West  v. 


RECEIVED    IN    GOOD    ORDER.  289 

This  admission,  however,  does  not  preclude  the  carrier 
from  introducing  evidence  to  rebut  it.  It  is  prima  facie 
only ;  ^  and  the  condition  of  the  package  itself  may  be 
such  as  to  rebut  the  presumption.  This  was  so  held 
when  the  package  was  found  to  be  perforated  by  nail  holes 
and  the  water  had  thereby  been  admitted  to  the  interior.^ 

It  was  said  in  one  case  that  in  order  to  rebut  this  pre- 
sumption derivable  from  the  admission  in  the  bill  of  lading, 
the  carrier's  proof  must  amount  to  a  certainty.'^  It  may 
fairly  be  questioned,  however,  whether  the  learned  court 
did  not  go  too  far  in  this  statement.  There  would  seem 
to  be  no  good  reason  why  any  rule  of  evidence  should  be 
applied  in  this  class  of  cases  different  from  that  which 
prevails  in  ordinary  civil  cases.  The  jury  or  the  court 
must  always  be  satisfied  that  the  preponderance  of  evi- 
dence is  in  favor  of  the  party  upon  whom  the  law  casts 
the  burden  of  proof  To  go  further  than  this  and  say  that 
he  must  establish  his  case  with  certainty,  would  seem 
rather  to  obscure  than  to  elucidate  the  question  under 
discussion. 

In  a  previous  case  in  the  same  court,  this  question  of 

The  Berlin,  3  Iowa,  542  (1856),  this  rule  was  held  not  to  apply  to  the 
case  of  pork  packed  in  barrels,  because  the  carrier  was  not  bound  to 
open  or  inspect  them. 

'  The  Oriflamme,  i  Sawyer,  176  (1870);  The  Black  Warrior,  i  Mc- 
Allister, 181  (1856);  Gowdy  V.  Lyon,  9  B.  Monr.  (Ky.)  112  (1848);  Car- 
son V.  Harris,  4  Green  (Iowa),  516  (1854);  Barrett  v.  Rogers,  7  Mass. 
297  (181 1);  The  Nith,  36  Fed.  Rep.  86  (i888);  Bissell  v.  Price,  16  111. 
408  (1855);  Seller  v.  The  Pacific,  i  Oregon,  409  (1861);  s.  c.  Deady,  19. 
It  was  held  in  The  Martha,  Olcott,  140(1845),  that  this  presumption  was 
not  rebutted  by  proof  that  the  iron  in  question,  which  was  stained,  was 
well  stowed  ;  that  the  ship  came  in  tight  and  dry,  and  that  the  iron  was 
taken  on  board  in  dry  weather,  and  had  not  been  exposed  to  water.  So 
in  Arend  v.  Liverpool  S.  S.  Co.,  6  Lans.  (N.  Y.)  457  ;  s.  c.  64  Barb. 
118  (1872),  where  the  claim  was  for  loss  of  wine  shipped  in  a  cask,  it 
was  held  that  this  presumption  was  not  rebutted  by  proof  that  the  voy- 
age was  tempestuous,  the  cargo  well  stowed,  and  the  hatches  properly 
secured. 

2  Richards  v.  Doe,  100  Mass.  524  (1868). 

'  Bond  V.  Frost,  8  La.  Ann.  297   (1853). 
19 


290  THE   MODERN   LAW   OF   CARRIERS. 

evidence  was  considered,  and  the  court  examined  the  va- 
rious facts  and  circumstances  which  went  to  show  that  the 
master  stowed  cargo,  which  he  knew  to  be  peculiarly  liable 
to  injury,  in  a  place  near  the  deck,  where  it  was  more  ex- 
posed to  such  injury,  and  held  that  this  rendered  the  car- 
rier liable  for  an  injury  apparently  resulting  from  that 
cause,  which  was  discovered  when  the  goods  arrived.^ 

The  admission  under  consideration,  so  far  as  it  relates 
to  the  external  cover,  refers  only  to  its  apparent  good  con- 
dition and  not  to  its  intrinsic  soundness  and  sufficiency.^ 
And  even  if  the  goods  were  visibly  in  bad  condition  when 
delivered  to  the  carrier,  yet  if  he  receipt  for  them  as  being 
in  good  order  and  well  conditioned,  he  cannot  recover  his 
freight  from  consignees  who  had  made  advances  upon  the 
faith  of  the  statement  in  the  bill  of  lading.^  It  was  said 
in  the  same  case  that  the  language  of  the  clause  under 
consideration  extended  only  to  the  external  and  apparent 
condition  of  the  goods,  and  did  not  refer  to  or  warrant  the 
internal  quality  or  condition  of  the  contents  of  the  pack- 
age.* 

The  weight  of  authority,  however,  is  against  the  propo- 
sition that  the  admission  in  question,  if  not  qualified,  re- 
lates only  to  the  external  appearance  of  the  goods.  The 
cases  just  cited  in  support  of  this  proposition,  which  were 


1  Montgomery  v.  The  "  Abby  Pratt,"  6  La.  Ann.  410  (1851). 

^  The  Olbers,  3  Bened.  148  (1869).  In  both  cases  cited  by  the 
learned  court,  the  bills  of  lading  contained  the  qualification  *'  Weight 
and  contents  unknown."  See  post,  p.  291.  It  is  possible  that  these 
words  may  have  been  contained  in  the  bill  of  lading  in  The  Olbers,  but 
the  report  does  not  so  state. 

^Bradstreet  v.  Heran,  2  Blatch.  116  (1849).  Nelson,  J.,  begins  his 
opinion  by  saying  :  "  It  is  admitted."  The  proposition  stated  in  the 
text  was  certainly  therefore  not  argued  before  him. 

"  To  the  same  effect  are  the  following  cases :  Keith  v-  Amende,  i 
Bush  (Ky.),  455  (1866);  West  v.  Steamboat  ''Berlin,"  3  Iowa,  532 
(1856);  Gauche  v.  Storer,  14  La.  Ann.  411  (1859);  Cf.  Nelson  v.  Ste- 
phenson, 5  Duer  (N.  Y.),  538  (185 1);  Goudy  v.  Lyon,  9  B.  Monr.  (Ky.) 
112  (1848). 


RECEIVED   IN   GOOD    ORDER.  29 1 

determined  in  the  Federal  Courts,  must  be  considered  as 
overruled  by  tbe  Supreme  Court/ 

The  clause  ''  Value  and  contents  unknown,"  and  simi- 
lar clauses  were  undoubtedly  introduced  into  bills  of  lad- 
ing to  protect  the  carrier  from  the  presumption  referred 
to,  and  it  is  certainly  going  a  great  way  to  maintain  that 
when  the  carrier  receipts  for  the  goods  in  good  order, 
without  any  clause  of  limitation,  he  can  claim  that  all  this 
means  is  that  the  box  was  in  good  order. 


SECTION    II. 

LIMITATIONS   RELATING  TO   QUANTITY,    CHARACTER    OR 

QUALITY. 

When  the  words  "  Value  and  contents  unknown," 
or  their  equivalent,  are  added  to  a  bill  of  lading,  they 
qualify  the  language  with  which  it  usually  begins  :  "  Re- 
ceived in  good  order  and  well  conditioned ;  "  and  shift  the 
burden  of  proof  as  to  the  condition  of  the  contents  when 
shipped. 

The  admission  implied  from  the  two  clauses  construed 
together  refers  to  the  condition  of  the  package  or  wrapper 
itself,  and  not  to  that  of  its  contents.  Thus,  for  example, 
in  a  case  where  a  box  of  dry  goods  was  found  on  arrival 
at  its  destination  to  be  only  partly  filled,  it  was  held  that 
no  admission  that  the  box  was  full  when  received  by  the 
carrier  could  be  inferred  from  a  bill  of  lading  containing 
both  these  clauses,  there  being  no  defect  observable  in  the 
external  condition  of  the  box.^     In  other  words,  the  ad- 

1  The  Ship  Howard  v.  Wissman,  18  How.  (U.  S)  231  (1855).  The 
Court  say:  "  The  owner  having  been  committed  to  the  prima  facie 
facts  of  soundness  and  good  condition  by  his  contract  of  affreightment, 
it  was  properly  imposed  on  him  by  the  District  Court  to  establish  the 
contrary  by  due  proof."     See  ante,  p.  253,  n.  i. 

"  The  "California,"  2  Sawyer,  12  (1871).  In  this  case  the  words 
used  were  "  in  apparent  good  order."     Matthiessen  &  W.  S.  Ref.  Co.  v. 


292  THE   MODERN   LAW   OF   CARRIERS. 

mission  by  the  carrier  is  limited  to  that  which  can  be 
ascertained  from  looking  at  or  handling  the  package  con- 
taining the  goods,  and  does  not  extend  to  the  quantity, 
character  or  quality  of  the  contents.^ 

Gusi,  29  Fed.  Rep.  794  (1887);  St.  Louis,  Iron  Mountain  &  S.  R.  Co.  v. 
Knight,  122  U.  S.  79  (1886).  In  this  case  the  bills  of  lading  acknowl- 
edged the  receipt  of  cotton  bales  "  marked  and  numbered  as  in  margin," 
**  contents  unknown."  The  carrier  tendered  to  the  consignee,  who  had 
in  good  faith  advanced  money  on  the  bills,  bales  so  marked  but  not  cor- 
responding to  the  quality  called  for  by  the  marks.  Held  that  this  was 
a  good  tender. 

In  Seller  v.  The  Pacific,  i  Oregon,  409;  Deady,  17  (1861),  however, 
the  court  gave  effect  to  the  words  "  in  good  order  "  in  a  bill  of  lading, 
and  refused  to  modify  them  by  the  clause  "  not  responsible  for  the  con- 
tents "  in  the  same  bill,  on  the  ground  that  it  would  be  a  contract  that 
the  person  who  in  that  case  received  the  bill  had  no  authority  to  make. 

^  Clark  V.  Barnwell,  12  How.  U.  S.  Rep.  272  (1851);  Eaton  v.  Neu- 
mark,  ^^  Fed.  Rep.  891  (1888);  Abbott  v.  National  S.  S.  Co.,  Ibid,  895 
(1888);  The  Columbo,  3  Blatch.  521  (1856).  These  two  authorities  also 
hold  that  in  such  cases  the  burden  is  on  the  shipper  to  show  that  the 
contents  were  in  good  condition  when  delivered  to  the  carrier.  The 
"Adriatic,"  16  Blatch.  424  (1879).  In  the  latter  case  a  bill  of  lading 
for  Coir  Yarn  in  bales,  receipted  for  them  as  "  in  good  order  and  well 
conditioned,"  and  described  them  as  "  in  transit  "  from  another  steamer. 
They  were  apparently  in  good  external  order.  When  the  bales  were 
landed  in  New  York,  one  hundred  were  found  to  have  been  wet  at  some 
time  with  sea  water.  On  cutting  the  wrappers  the  yarn  was  found  to 
be  damp  to  the  touch,  but  not  enough  to  drip,  and  was  to  some  extent 
discolored  and  unfit  for  the  manufacture  of  fine  goods,  for  which  it  had 
been  intended.  The  bales  were  proved  to  have  been  properly  stowed. 
No  other  part  of  the  cargo  was  wet.  There  was  no  appearance  of  a 
leak,  and  the  hatches  were  all  in  good  order  and  well  secured  when  the 
vessel  arrived.  There  was  no  evidence  as  to  the  condition  of  the  bales 
when  shipped,  other  than  that  contained  in  the  bill  of  lading.  It  was 
not  shown  how  long  they  had  been  "  in  transit "  when  the  shipment  was 
made,  nor  from  what  place  the  original  consignment  was  made,  nor 
whether  the  bales  had  been  specially  exposed  to  sea  water  in  the  previ- 
ous voyage.  Held,  that  the  libellant  could  not  recover  because  he  had 
not  shown  that  the  goods  were  damaged  while  on  board  the  steamer 
libeled. 

In  Miller  v.  Hannibal  &  St.  Jo.  R.  R.,  90  N.  Y.  Rep.  430;  s.  c.  43 
Am.  Rep.  179  (1882);  rev'g.  24  Hun,  607  (1881),  the  bill  of  lading 
described  the  contents  as  "  30  bbls.  eggs;"  but  the  clause  "contents 
and  value  unknown  "  was  added.  On  arriving  at  their  destination  the 
barrels  were  found  full  of  sawdust.  Held,  that  the  carrier  was  not  lia- 
ble unless  it  could  be  shown  that  the  barrels  contained  eggs  when 
shipped.  The  court  say  :  "  The  sole  question  is  whether  the  description 
of  the  articles  in  the  bill  of  lading  was  a  representation  by  the  carrier 


VALUE   AND   CONTENTS   UNKNOWN."  293 

So  where  the  language  used  was  "  contents  and  weight 
unknown,"  it  was  held  that  the  statement  in  the  margin 
of  the  bill  of  lading  as  to  the  weight  of  the  goods  was  not 
conclusive  in  deciding  as  to  the  freight  to  be  paid,  but 
that  this  must  be  ascertained  by  their  actual  weight.^    Nor 

that  the  barrels  contained  eggs,  because  if  this  is  the  true  construction 
of  the  instrument,  the  right  of  the  plaintiffs  to  recover  is  unquestionable. 
But  we  are  of  opinion  that  this  construction  is  inadmissible.  Taking 
the  whole  instrument  together,  it  imports  only  that  the  defendant  had 
received  thirty  packages  described  as  containing  eggs,  but  the  actual 
contents  of  which  were  unknown  to  defendant.  The  opposite  view  pro- 
ceeds upon  the  theory  that  there  is  an  irreconcilable  repugnancy  between 
the  written  and  printed  parts  of  the  instrument,  or  that  the  words  '  con- 
tents unknown'  relate  simply  to  the  kind  of  eggs  in  the  packages.  It 
is  no  doubt  a  principle  of  construction  that  in  case  of  repugnancy  be- 
tween written  and  printed  clauses  of  an  instrument,  the  written  clauses 
will  prevail  over  the  printed.  But  this  is  a  rule  which  is  only  resorted 
to  from  necessity,  when  the  printed  and  written  clauses  cannot  be  recon- 
ciled. But  it  is  the  imperative  duty  of  courts  to  give  effect  if  possible 
to  all  the  terms  of  an  agreement.  The  construction  is  to  be  made  upon 
a  consideration  of  the  whole  instrument,  and  not  upon  one  or  more 
clauses  detached  from  the  others  ;  and  this  principle  applies  as  well  to 
instruments  partly  printed  and  partly  written  as  to  those  wholly  printed 
or  wholly  written.  Where  two  clauses,  apparently  repugnant,  may  be  re- 
conciled by  any  reasonable  construction,  as  by  regarding  one  as  a  quali- 
fication of  the  other,  that  construction  must  be  given,  because  it  cannot 
be  assumed  that  the  parties  intended  to  insert  inconsistent  provisions. 
Applying  these  settled  rules  to  the  instrument  in  question,  it  is,  we 
think,  reasonably  clear  that  the  defendant  did  not  make  any  representa- 
tion as  to  the  contents  of  the  packages.  Its  agent  simply  certified  in 
effect  that  they  were  described  as  containing  eggs,  accompanying  this 
with  the  statement  that  the  contents  were  not  in  fact  known.  The 
plaintiffs  in  making  the  advances  were  chargeable  with  knowledge  of 
the  contents  of  the  bill  of  lading  and  must  be  deemed  to  have  relied 
upon  the  assurance  of  the  shipper  as  to  the  contents  of  the  packages. 
The  claim  that  the  words  'contents  unknown'  referred  simply  to  the 
kind  of  eggs,  is  manifestly  untenable." 

But  it  has  been  held  that  the  words  "contents  and  gauge  unknown," 
in  a  bill  of  lading  receipting  for  "  barrel  of  molasses,"  must  be  inter- 
preted as  referring  only  to  the  quality  and  quantity  of  the  molasses,  not 
to  the  fact  that  it  was  molasses.  Nelson  v.  Stephenson,  5  Duer,  538 
{1856).  Where  a  succeeding  carrier  has  receipted  for  the  goods  in  good 
order,  and  there  was  positive  evidence  of  negligence,  held,  it  was  prop- 
erly left  to  the  jury  whether  the  first  carrier  was  liable.  N.  Y.  Cent.  & 
H.  R.  R.  R.  V.  Eby,  12  Atl.  Rep.  (Penn.)  482  (1888). 

'  The  "  Andover,"  3  Blatch.  303(1855).  In  this  case  Nelson,  J., 
said  :  "  The  cotton  in  question  was  part  of  a  cargo  shipped  at  New  Or- 
leans and  consigned  to  the  libellant  at  New  York,  he  paying  the  freight. 


294  THE   MODERN   LAW   OF   CARRIERS. 

in  such  a  case  is  tlie  ship  or  owner  liable,  althougli  the 
amount  actually  delivered  to  the  consignee  is  less  than 
the  amount  specified  in  the  margin  as  received  by  the  car- 
rier.^ 

This  clause  is  generally  invoked  by  the  carrier.  It  is, 
of  course,  equally  available  to  the  shipper.  As,  for  exam- 
ple, it  has  been  held  that  under  a  bill  of  lading  containing 
the  words  "  contents  unknown,"  but  describing  the  goods 
shipped  as  domestics,  the  shipper  could  show  that  one  of 
the  cases  when  shipped  contained  silk  goods  and  not  do- 
mestics, and  could  recover  their  full  value  in  case  of  loss, 
provided  the  carrier  was  not  misled  by  the  description.^ 


The  bill  of  lading  contained  the  clause  'contents  and  weight  unknown.' 
The  freight  was  to  be  paid  at  a  certain  rate  per  pound,  and  in  the  mar- 
gin of  the  bill,  the  figures  29,782  were  placed,  apparently  as  the  aggre- 
gate weight  of  the  cotton.  On  the  arrival  of  the  cotton,  the  consignees 
of  the  ship  claimed  that  the  figures  in  the  margin  of  the  bill  should  gov- 
ern in  determining  the  weight,  while  the  libellant  insisted  that  as  the 
bill  of  lading  said  'weight  unknown,'  the  cotton  should  be  weighed  and 
freight  paid  accordingly.  .  .  .  There  is  nothing  in  the  bill  of  lading 
indicating  that  the  weight  was  agreed  upon  by  the  master  and  the  ship- 
per, but  the  contrary.  For,  notwithstanding  the  memorandum  in  the 
margin  as  to  the  supposed  or  real  weight  of  the  cotton,  the  master,  as  is 
apparent,  required  the  insertion  at  the  foot  of  the  bill,  before  he  signed 
it,  of  the  words  'contents  and  weight  unknown,'  thereby  excluding  any 
inference  that  the  owner  was  to  be  bound  by  the  memorandum.  This 
memorandum  is  not  even  referred  to  in  the  body  of  the  bill.  .  .  • 
But,  if  otherwise,  it  could  not  vary  the  result.  The  bill  of  lading  is  a 
printed  form  filled  up,  and  the  words  '  contents  and  weight  unknown  ' 
are  added  at  the  bottom  with  a  pen,  clearly  indicating  an  intent  on  the 
part  of  the  master  not  to  be  bound  by  any  supposed  ascertainment  of 
the  weight  at  the  time  by  the  shipper.  Any  other  construction  would 
be  in  disregard  of  the  clear  import  of  the  instrument,  and  unjust  to  the 
master  and  his  owner." 

1  The  Venner,  27  Fed.  Rep.  523  (1885);  The  Stoga,  10  Benedict, 
315  (1879);  The  Queen,  28  Fed.  Rep.  755  (1886).  In  this  case  Brown, 
J.,  said  that  the  burden  of  proving  that  the  amount  received  was  less 
than  that  stated  in  the  margin  remained  on  the  carrier.  But  this  hardly 
appears  necessary  to  the  decision.  Shephard  v.  Naylor,  5  Gray  (71 
Mass.),  591  (1856).  The  same  court  gave  a  like  construction  to  the 
words  "  more  or  less,"  added  to  the  statement  in  the  body  of  the  bill  of 
lading  of  the  quantity  of  the  goods  received.  Kelley  v.  Bowkcr,  1 1 
Gray  (77  Mass.),  428  (1858). 

^  Fassett  v.  Ruark,  3  La,  Ann.  694  (1848). 


"value  and  contents  unknown."  295 

The  question  in  all  these  cases  is  really  one  of  burden 
of  proof,  and  this  is  often  of  great  importance  in  the  actual 
trial  of  causes  where  goods  have  been  shipped  at  a  distant 
port,  and  the  obtaining  of  evidence  in  regard  to  the  ship- 
ment is  difficult  or  impossible.^ 

The  presumption  referred  to  is  not  artificial  or  arbi- 
trary, and  will  always  give  way  to  any  inference  naturally 
to  be  derived  from  the  appearance  of  the  goods  or  package 
in  which  they  are  contained  upon  their  arrival  at  the  port 
of  destination.  If,  for  example,  the  package  is  in  good 
condition,  and  it  may  reasonably  be  inferred  from  its  ap- 
pearance that  the  goods  were  properly  packed  and  were 
in  good  order  and  fit  for  transportation  when  packed,  it 
will  be  presumed  as  against  the  carrier  that  any  injury  to 
the  contents  took  place  during  their  transportation,  not- 
withstanding the  use  in  the  bill  of  lading  of  the  words 
"Weight,  contents  and  value  unknown."^ 

If  the  external  covering  of  the  goods  is  damaged  when 
they  are  delivered,  so  as  naturally  to  account  for  an  injury 
to  their  contents,  evidence  of  the  condition  of  the  goods  at 
the  time  of  shipment  may  be  dispensed  with.^  If  the  bill 
of  lading  contain  the  clause  "quantity  guaranteed,"  the 
carrier  is  liable  to  make  good  any  deficiency  between  the 
quantity  he  delivers  and  that  specified  in  the  bill  of  lad- 
ing." 

Clauses  in  a  bill  of  lading  relating  to  the  quantity  or 
quality  of  the  goods  shipped  are  to  be  construed  with  ref- 
erence to  the  other  clauses  in  the  same  instrument,  and 
effect,  if  possible,  must  be  given  to  them  all.^ 

*  Wentworth  v.  Realm,  16  La.  Ann.  18  (1861). 

^  English  V.  The  Ocean  Steam  Navigation  Co.,  2  Blatch.  425  (1852); 
The  "Adriatic,"  16  Blatch.  424  (1879). 
3  The  "Columbo,"  3  Blatch.  521  (1856). 

*  Bissell  V.  Campbell,  54  N.  Y.  353  (1873). 

*  Price  V.  Hartshorn,  44  N.   Y.  94  (1870).     In   this  case   the  clause 
was :  "  Damage  or  deficiency  in  quantity,  if  any,  to  be  deducted  from 


296  THE  MODERN    LAW   OF   CARRIERS. 

SECTION    III. 

THE    ACT    OF    GOD,    PERILS    OF    THE    SEAS,     RIVERS,    &C.,    AND 

OTHER   CAUSES   OF   INJURY   OCCURRING   WITHOUT 

HUMAN    INTERVENTION. 

Strict  as  was  tlie  carrier's  common  law  liability  it  did 
not  extend  so  far  as  to  render  him  liable  for  certain  losses 
occurring  strictly  without  human  intervention,  and  which 
he  could  not  by  the  use  of  reasonable  care  have  foreseen. 
The  expression  "  Act  of  God  "  was  used  to  describe  the 
causes  of  such  loss  or  damage,  and  is  still  retained  in  bills 
of  lading  to  express  that  idea.  There  are  other  terms,  such 
as  Perils  of  the  Seas,  Lakes,  Rivers,  and  navigation,  and 
inevitable  accident,  frequently  found  in  bills  of  lading  and 
used  to  express  various  causes  of  loss  or  injury,  from  re- 
sponsibility for  which  the  carrier  is  exempted,  either  by 
the  operation  of  law  or  the  express  terms  of  the  contract. 
In  all  such  cases  the  rule  is  the  same.  The  carrier  is  not 
liable  for  injuries  or  losses  caused  without  human  inter- 
vention, and  which  could  not  have  been  foreseen  and 
guarded  against  by  the  use  of  reasonable  skill  and  fore- 
sight.^ 

All  of  these  terms  are  frequently  used  as  synonymous 

charges  by  consignees."  It  was  held  that  this  did  not  qualify  the  clauses 
excepting  liability  for  loss  or  injury  by  perils  of  the  sea,  so  as  to  make 
the  carrier  responsible  for  injury  by  such  perils  to  the  extent  of  the 
freight.  The  same  rule  of  construction  is  stated  in  Miller  v.  Hannibal 
&  St.  Jo.  R.  R.,  quoted  at  length,  ante,  p.  292,  note  i. 

^  Chicago  B.  &  Q.  R.  Co.  v.  Manning,  37  N.  W.  Rep.  (Nebraska),  462 
(1888).  For  example,  a  sudden  and  unexpected  rise  of  a  river  is  the 
"Act  of  God,"  and  if  with  reasonable  diligence  baggage  cannot  be  re- 
moved from  a  station  in  time  to  prevent  its  being  wet,  the  carrier  is  ex- 
onerated. Strauss  z'.  Wabash,  St.  L.  &  P.  R.  R.,  17  Fed.  Rep.  209  (1883). 
The  carrier  is  not  bound  to  exercise  extreme  care  and  diligence  to  avert 
the  consequences  of  such  an  accident  as  a  land  slide  ;  ordinary  care  and 
diligence  are  all  that  the  law  requires  under  such  circumstances. 
Gleason  v.  Virginia  Midland  R.  Co.,  5  Mackey  (D.  C-),  356.  So,  also, 
loss  by  an  unknown  snag  in  the  usual  channel  was  termed  an  "  Act  of 
God."  Smyrl  z;.  Niolan,  2  Bailey  (S.  C),  421  (1831).  This  might,  per- 
haps, have  been  more  properly  termed  a  peril  of  navigation. 


ACT   OF   GOD. — PERILS   OF   THE   SEA.  297 

with  the  term  "  Act  of  God,"  and  in  some  cases  it  has 
been  expressly  said  that  they  were  synonymous.  But  in 
others  it  is  held  that  there  are  inevitable  accidents  which 
are  not  the  "  Act  of  God," '  and  for  which  the  carrier  is 
responsible  unless  he  has  exempted  himself  by  special 
contract  in  the  bill  of  lading  or  otherwise. 

To  a  certain  extent  this  difference  is  probably  not  a 
mere  difference  of  terminology,  and  those  tribunals  which 
have  intimated  that  there  are  inevitable  accidents  or  perils 
of  navigation  other  than  those  arising  from  the  "  Act  of 
God,"  would  probably  not  hold  the  carrier  exonerated 
from  liability  for  losses  or  injury  originating  from  them 
unless  he  had  expressly  contracted  for  such  exemption. 
For  it  is  well  settled  that  "  the  causes  which  will  excuse 
the  owners  and  master  for  the  non-delivery  of  the  cargo 
must  be  events  falling  within  the  meaning  of  one  of  the 
expressions,  '  Act  of  God '  and  public  enemies  ;  or  they 
must  arise  from  some  event  expressly  provided  for  in  the 
charter  party."  ^ 

'  Fisk  V.  Chapman,  2  Georgia,  349  (1847);  Ala.  Gt.  So.  R.  R.  v. 
Little,  71  Ala.  611  (1882).  In  Ewart  v.  Street,  2  Bailey  (S.  C),  162 
(1831),  it  was  said  the  term  "Act  of  God"  seems  to  involve  some  notion 
of  an  accident  from  natural  causes,  such  as  storms,  lightning,  tempests, 
&c.  In  Packard  v.  Taylor,  35  Ark.  402  (1880),  a  distinction  is  made 
between  "  inevitable  accident  "  and  the  "  Act  of  God."  In  Fowler  v. 
Davenport,  21  Tex.  626  (1858),  it  was  held  that  "  unavoidable  accident  " 
has  substantially  the  same  meaning  as  perils  of  the  seas  or  the  Act  of 
God,  and  in  Baxter  z'.  Leiand,  i  Abb.  Adm.  348  (1848),  "  dangers  of 
the  seas,"  the  "  dangers  of  navigation,"  and  the  "  perils  of  the  seas," 
are  considt-red  to  be  equivalent  terms. 

In  VValpole  v.  Bridges,  5  Blackf.  (Ind.)  222  (1839),  it  was  held  that 
Acts  of  God  were  not  merely  those  arising  from  natural  causes,  but  that 
the  term  included  all  inevitable  accidents.  In  Plaisted  v.  Boston  &  K. 
St.  Nav.  Co.,  27  Me.  132  (1847),  it  was  expressly  held  that  the  term 
"  perils  of  the  seas"  was  not  synonymous  with  the  term  "  Act  of  God." 
In  Central  Line  of  Boats  v.  I>ow,  50  Geo.  509  (1873),  it  was  held  that 
an  unavoidable  accident  was  not  the  same  as  an  Act  of  God,  but  that 
the  latter  term  implied  vis  major.     See  post,  p.  303,  n.  i. 

^  3  Kent  Com.  216.  Cresby  v.  Fitch,  12  Conn.  410  (1848);  Wal- 
pole  V.  Bridges,  5  Blackf.  (Ind.)  222  (1839);  Jones  v.  Pitcher,  7  Ala.  O. 
S.  175  (1833).  In  Crosby  v.  Fitch,  it  was  also  said  that  the  use  of  the 
exception  "  perils  of  the  seas,"  in  a  bill  of  lading,  did  not  vary  the  car- 


298  THE    MODERN    LAW   OF   CARRIERS. 

But  ill  general,  it  may  be  said  that  tlie  ordinary  risks 
commonly  incident  to  the  voyage  are  not  excepted  by  the 
true  meaning  of  these  clauses.  It  is  the  duty  of  the  car- 
rier to  provide  means  which  shall  be  adequate  to  overcome 
ordinary  perils,  and  it  is  only  against  liability  for  unusual 
dangers  that  the  carrier  is  guarded  by  these  exceptions  to 
his  liability,^  and  notwithstanding  them  the  carrier  is  still 
bound  by  the  obligations  defined  in  Chapter  IV. 

But  when  the  danger  cannot  with  reasonable  care  be 
foreseen,  and  by  the  exercise  of  the  ordinary  and  usual 
means  cannot  be  guarded  against,  the  carrier  himself,  if 
free  from  negligence,  is  not  liable  for  the  consequences.^ 

rier's  liability,  but  that  the  carrier  was  not  liable  for  injury  caused  by 
peril  of  the  sea,  whether  expressly  excepted  or  not. 

^  The  Newark,  i  Blatch.  203  (1846);  Tuckerman  v.  Stephens  & 
Condit  Trans.  Co.,  32  N.  J.  (Law),  320  (1867).  A  carrier  is  liable  for 
injuries  caused  directly  by  a  storm  which  would  not  have  caused  the 
injury  if  the  vessel  had  been  seaworthy.  Packard  v.  Taylor,  35  Ark. 
402;  s.  c.  37  Am.  Rep.  37  (1880);  The  Howden,  5  Sawyer,  C.  C  389 
(1879);  Dupont  V.  Vann,  19  How.  (U.  S.)  168  (1856). 

^  A  sudden  failing  of  the  wind  while  a  vessel  is  tacking  near  shore 
is  a  peril  of  the  sea  or  an  unavoidable  accident,  and  for  a  loss  so  caused 
the  carrier  is  not  liable.    Colt  v.  McMechen,  6  Johns.  (N.  Y.)  160  (1810). 

In  Colt  V.  McMechen,  Kent,  Ch.  J.,  intimated  that  if  the  point  had 
been  made  below  that  the  ship  ought  not  to  have  been  so  near  the  shore, 
he  might  have  dissented. 

Unknown  shoals  in  the  usual  channel  are  perils  of  navigation.  The 
Favorite,  2  Bissell,  502  (1871);  Redpath  v.  Vaughn,  52  Barb.  (N.  Y.) 
489  (1868);  Boyce  z'.  Welch,  5  La.  Ann.  623  (1880);  Hibernia  Insurance 
Co.  V.  St.  Louis  Co.,  120  U.  S-  166  (1887);  Turny  v.  Wilson,  7  Yerg. 
(Tenn.)  340  (1835);  Strouss  v.  Wabash,  St.  L.  &  P.  R.  Co.,  17  Fed. 
Rep.  209  (1883);  Smyrl  ?'.  Niolan,  2  Bailey  (S.  C),  421  (1831).  And 
see  The  Portsmouth,  9  Wall.  682  (1869);  Schloss  v.  Heriot,  14  C.  B.  (N. 
S.)  59  (1863);  The  Norway,  3  Moore  P.  C  N.  S.  245,  262  (1865);  Bazin 
V.  Richardson,  20  Law  Rep.  129  ;  s.  c  5  Am.  Law  Reg.  459  (185 1). 

But  if  a  vessel  strike  an  obstruction  which  she  might  have  discovered 
(as  the  masts  of  a  sunken  vessel  which  projected  above  the  water),  that 
is  not  an  excepted  peril,  though  they  had  been  there  but  a  short  time. 
Merritt  v.  Earle,  29  N.  Y.  115  (1864).  In  this  case  the  ship  which  was 
run  into  had  been  sunk  by  a  violent  and  sudden  squall  a  day  or  two 
before.  Held,  this  squall  was  not  the  proximate  cause  of  the  injury  to 
the  colliding  vessel.  See,  also,  Gordon  v.  Buchanan,  5  Yerg.  (Tenn.)  71 
(1833).  A  violent  gale  is  a  peril  of  the  seas.  Cochran  v.  The  Cleo- 
patra, 17  La.  Ann.  270  (1865);  Medina  v.  Hanson,  Id.  290  (1865).  The 
freezing  of   fruit  in  the  hold  is  an  Act  of  God,  no  negligence  being 


ACT  OF  GOD. — PERILS  OF  THE   SEA.  299 

If  negligence,  either  of  the  carrier  or  his  agents,  has 
contributed  to  and  is  the  immediate  cause  of  the  injury, 
the  carrier  is  liable,  although  this  negligence  would  not 
have  caused  the  injury  but  for  the  Act  of  God,  through 
tempest  or  otherwise.^ 

shown.  The  Alesia,  35  Fed.  Rep.  531  (1888).  Compare,  however, 
cases  in  sect.  8,  note  3,  post. 

Where  the  loss  is  caused  by  an  earthquake  and  there  is  no  evidence 
of  negligence,  the  carrier  is  not  liable.  An  earthquake  is  an  Act  of 
God.     Slater  v.  So.  Car.  R.  Co.,  6  S.  E.  Rep.  (S.  C)  936  (1888). 

^  Ewart  V.  Street,  2  Bailey  (S.  C),  157  (1831);  The  Portsmouth,  9 
Wall.  682  (1869);  Schloss  V.  Heriot,  14  C.  B.  (N.  S.)  59  (1863);  Bazin 
V.  Richardson,  20  Law  Rep.  129;  reported  j'//^^  ;z<?w.;  Bazin  j^.  Steamship 
Co.,  3  Wall.  Jr.  229  (1851). 

The  Act  of  God  which  shook  the  dock,  from  under  the  vessel  was 
not  the  immediate  cause  of  the  damage.  Packard  v.  Taylor,  35  Ark. 
402  (1880).  "Though  the  peril  of  the  sea  may  be  nearer  m  time  to  the 
disaster,  the  efficient  cause  without  which  it  would  not  have  occurred 
is  regarded  as  the  proximate  cause  of  the  loss."  The  Portsmouth, 
supra;  The  Aline,  19  Fed.  Rep.  875  (1883),  and  25  Fed  Rep.  562 
(1885).  See,  also,  Slocum  v.  Fairchild,  7  Hill  (N.Y.),  292  (1843);  aff'g 
s.  C.  19  Wend.  329  (1838);  The  Invincible,  3  Sawyer,  176  (1874);  At- 
wood  V.  Reliance  Trans.  Co.,  9  Watts  (Penn.),  87  (1839).  Unauthor- 
ized stowage  on  deck  is  such  negligence  as  will  make  the  carrier  liable 
if  the  goods  are  for  that  reason  injured  or  jettisoned  in  a  storm.  The 
Rebecca,  i  Ware,  188  (1831);  The  Paragon,  lb.  322  (1836);  Waring  v. 
Morse,  7  Ala.  343  (1845);  Barber  v.  Brace,  3  Conn.  9  (1819);  Vernard 
V.  Hudson,  3  Sumn.  405  (1838);  The  Peytona,  2  Curtis,  21  (1854); 
aff'g.  s.  C.Ware  (2  Ed.),  541  (1854). 

With  this  exception  a  loss  by  jettison  is  a  loss  by  a  peril  of  the  sea, 
or  as  It  is  otherwise  expressed,  by  the  Act  of  God,  or  inevitable  accident, 
if  made  necessary  by  a  tempest.  Gillett  v.  Ellis,  11  111.  579  (1850).  So 
it  is  if  made  by  the  master  when  the  ship  is  not  in  immediate  danger, 
but  when  in  his  judgment,  after  due  deliberation,  it  is  required  for  the 
safety  of  those  on  board  and  of  the  ship,  the  goods  being  of  such  a 
character  that  they  could  not  be  safely  jettisoned  in  a  storm,  and  the 
necessity  arising  from  injury  to  the  ship  caused  by  a  previous  storm. 
Lawrence  v.  Minturn,  17  How.  U.  S.  100  (1850);  The  Bergenseren,  36 
Fed.  Rep.  700  (1888). 

In  this  case  the  goods  had  been  stowed  on  deck  by  the  shipper's 
consent. 

And  the  carrier  may  contract  for  a  right  to  jettison  a  deck  load  of 
cattle  if  necessary  for  the  safety  of  the  ship,  without  liability  of  the  ship 
and  cargo  to  general  average.     The  Enrique,  5  Hughes,  275  (1881). 

In  Nill  V.  Sturgeon,  28  Mo.  328  (1859),  it  was  held  that  the  term 
"  dangers  of  the  river  "  was  broader  than  the  term  "  Act  of  God,"  but 
that  it  did  not  include  such  accidents  as  could  be  avoided  by  the  exer- 
cise of  skill,  judgment  or  foresight.     If,  for  example,  the  sheering  of  a 


300         THE  MODERN  LAW  OF  CARRIERS. 

On  the  other  hand,  to  render  the  carrier  liable  in  such 
a  case,  it  must  appear  that  his  negligence  was  the  efficient 
or  proximate  cause  of  the  injury,  the  causa  causans.  This 
principle  is  illustrated  by  two  cases  cited  in  the  note/  In 
Astrup  V.  Ivcwey,  the  bottom  of  the  vessel  had  been 
strained  by  overloading,  and  gave  way  in  a  storm  which 
she  would  otherwise  have  been  able  to  weather  in  safety. 
Here  the  negligence  and  not  the  storm  was  the  real  cause. 
Ships  are  expected  to  meet  storms.  It  is  only  violent  and 
unusual  ones  that  are  considered  the  "  Act  of  God,"  for 
the  consequences  of  which  the  carrier  is  not  liable.  In 
The  Titania,  a  spare  propeller  which  had  been  carefully 
and  properly  stowed  broke  loose  in  a  storm  and  caused  a 
leak.     It  was  held  that  the  carrier  was  not  liable. 

So  where  vermin  are  allowed  to  overrun  a  ship,  damage 
caused  by  their  gnawing  or  otherwise  injuring  the  cargo 
cannot  be  attributed  to  the  perils  of  the  sea.  The  old 
rule  was  that  the  carrier  was  not  liable  for  an  injury  by 
rats  if  he  kept  a  cat  on  board  the  ship.  Now  it  is  held 
that  the  presence  of  the  cat  is  not  controlling.  In  Aymar 
V.  Astor,  it  was  said  that  the  reason  of  this  was  because  a 
better  and  more  efficient  method  of  ridding  ships  of  rats 
had  been  discovered.'     But  if  they  gnaw  a  hole  in  a  pipe 


boat  was  caused  by  running  too  near  a  bar,  or  by  any  other  imprudence, 
or  by  neglecting  any  proper  precaution,  or  by  the  incompetence  of  the 
pilot,  the  carrier  would  be  liable.     See  ante,  p.  298. 

1  Astrup  V.  Lewey,  19  Fed.  Rep.  536  (1884);  The  Titania,  19  Fed. 
Rep.  loi  (1883);  and  see  The  Fern  Holme,  24  Fed  Rep.  502  (1885). 

When  goods  were  so  placed  as  to  be  obviously  in  danger  of  fire,  but 
were  destroyed  by  fire  caused  in  a  manner  that  could  not  have  been 
foreseen,  it  was  held  the  negligence  was  too  remote  to  be  treated  as  the 
cause  of  the  loss.  Merch.  Wharf  Boat  Ass'n.  v.  Wood,  2  So.  Rep.  76 
(1887);  3  So.  Rep.  248  (1887). 

2  Aymar  v.  Astor,  6  Cow.  (N.  Y.)  266  (1826);  The  Carlotta,  9  Bene- 
dict, I  (1877);  The  Isabella,  8  Benedict,  139  (1875);  The  Miletus,  5 
Blatch.  335  {1866);  Laveroni  v.  Drury,  8  Excheq  166;  22  L.  J-  (Ex.)  2 
(1852);  Kay  V.  Wheeler,  L.  R.  2  C  P.  302  (1867). 

And  even  if  the  bill  of  lading  in  terms  exempts  the  carrier  from  lia- 
bility for  "damage  done  by  vermin,"  it  will  still  be  liable  if  it  neglected 


ACT  OF  GOD. — PERILS   OF  THE  SEA.  301 

or  in  tlie  side  of  the  ship  and  water  enter  and  injure  the 
cargo,  this  damage  is  caused  by  a  peril  of  the  sea/ 

So,  although  a  collision  caused  by  inevitable  accident 
is  a  peril  of  the  sea,  yet  if  the  cause  of  the  collision  should 
appear  to  be  the  negligence  of  the  ship  on  which  the  in- 
jured cargo  was  stowed,  the  damage  would  not  be  attrib- 
uted to  a  peril  of  the  sea.^  To  guard  against  this  risk  it 
is  now  common  to  insert  in  bills  of  lading  a  clause  that  a 
carrier  shall  not  be  liable  for  injuries  caused  by  collision. 
Such  a  clause  is  subject  to  the  observations  in  the  pre- 
vious chapters    as   to   the   effect  of  negligence  and  the 

to  fumigate  the  ship  before  stowing  the  cargo.  It  appeared  that  this 
precaution  would  probably  have  prevented  the  damage  from  rats. 
Stevens  v.  Navigazione  Gen.  Italiana,  39  Fed.  Rep.  562  (1889). 

^  Pandorf  z'.  Hamilton,  T/.  R.  12  App.  Ca.  518  (1887);  revg.  s.  c. 
172  B.  Div.  670  (1886);  34  Alb.  L.  J.  488. 

The  House  of  Lords  put  the  decision  on  the  ground  stated  by  Lord 
Watson  (p.  525):  "The  sea  is  the  immediate  cause  of  mischief."  Lords 
Bramwell  and  Macnaghten  quote  with  approval  the  definition  of  Lopes, 
L.  J.:  "Sea  damage,  occurring  at  sea,  and  nobody's  fault."     (Pp.  526, 

53°-) 

The   notes  of   both    decisions  in  Gibson's  Law  Notes   (vols.    5-7), 

incorrectly  slate    that   the    Master  of  the    Rolls  dissented    from    the 

Court  of  Appeals. 

The  same  rule  was  applied  to  the  construction  of  a  policy  of  insur- 
ance in  Garrigues  z'.  Coxe,  i  Binn.  592  (1809).  Hazard's  Adm.  v.  N. 
Eng.  Mar.  Ins.  Co.,  8  Pet.  557  (1834),  was  a  case  where  worms  in  the 
Pacific  Ocean  had  bored  through  the  planking  of  a  ship  and  so  weak- 
ened it  that  it  gave  way  when  it  struck  a  rock.  The  court  say :  "  Under- 
writers insure  against  losses  from  extraordinary  occurrences  only,  such 
as  stress  of  weather,  winds  and  waves,  lightning,  tempests,  rocks,  &c. 
These  are  understood  to  be  the  *  perils  of  the  seas '  referred  to  in  the 
policy,  and  not  those  ordinary  perils  which  every  vessel  must  encounter." 

'  Marsh  v.  Blyth,  i  McCord  (S.  C),  360  (1825);  Sailing  Ship  Gars- 
ton  Co.  V.  Hickie,  56  L.  J.  (Q.  B.  D.)  39  (1886);  Woolly  v.  Mitchell,  11 
Q.  B.  Div.  47  (1883);  Hayes  v.  Kennedy,  41  Penn.  378  (1861);  Jones 
V.  Pitcher,  3  Stew.  &  Port.  (Ala.)  176  (1833);  Whiteside  v.  Thurlkill,  20 
Miss.  599  (1849);  The  New  Jersey,  01c.  Adm.  444  (1846).  But  while 
a  collision  without  negligence  is  a  peril  of  the  sea,  it  is  not  an  act  of 
God,  and,  if  there  be  no  exceptions  in  the  bill  of  lading,  the  carrier  will 
be  liable  for  damage  caused  by  it.  Plaisted  v.  Boston  &  K.  Steam  Nav, 
Co.,  27  Me.  132  (1847). 

Where  an  act  of  God  caused  delays,  yet  if  this  would  not  have  hap- 
pened if  the  carrier  had  kept  his  contract,  he  is  not  excused.  Gulf,  &c., 
R.  Co.  V.  McCorquedale,  9  S.  W.  Rep.  (Texas),  80  (1888). 


302        THE  MODERN  LAW  OE  CARRIERS. 

burden  of  proving  negligence,  and  need  not  liere  be 
further  dwelt  upon.  Indeed,  it  has  been  held  where  the 
captain  was  misled  by  the  shifting  of  a  buoy  in  the 
channel,  the  cause  of  which  was  unknown,  and  injury  to 
the  cargo  was  caused  thereby,  that  the  loss  was  not  within 
the  exemptions  of  the  bill  of  lading.^ 

If  inj  ury  be  done  partly  by  the  negligence  of  the  car- 
rier and  partly  by  a  peril  of  the  sea,  and  the  loss  arising 
from  each  cause  can  be  apportioned,  the  carrier  will  only 
be  held  liable  for  that  portion  of  the  loss  occasioned,  by  his 
negligence.^ 

Desertion  by  the  seamen  is  not  a  peril  of  the  sea,  and 
the  carrier  will  be  liable  for  a  loss  occasioned  thereby.^ 

The  endeavor  was  at  one  time  made  to  convince  the 
Courts  that  loss  by  accidental  fire  was  a  peril  of  the  sea, 
or  inevitable  accident,  and  that  the  carrier  was  not  liable 
therefor.  This  was  unsuccessful.  It  has  long  been  well 
settled  that  the  carrier  is  liable  for  injuries  or  losses  from 
fire,  unless  it  was  produced  by  lightning  or  excepted  in 
the  bill  of  lading.'* 


^  Reeves  v.  Waterman,  2  Spears  (S.  C),  197  (1843).  There  were 
two  dissenting  opinions  in  this  case,  and  the  majority  of  the  court  base 
its  opinion  on  the  fact  that  this  buoy  was  known  to  be  unreliable,  and 
there  were  other  permanent  land  marks  which  should  have  been  con- 
sulted. 

^  Tennessee  v.  Tardos,  7  La  Ann.  28  (1852);  Illinois  Central  R.  R. 
V.  Owens,  53  111.  391  (1870).  In  this  case  the  contract  expressly  ex- 
cepted all  injuries  caused  by  delay  "  except  such  as  happened  from  col- 
lision." Delay  ensued,  caused  partly  by  collision  and  negligence,  and 
partly  by  extreme  cold  weather.  It  was  held  that  the  carrier  was  liable 
for  the  injury  caused  by  the  former  and  not  for  that  caused  by  the 
latter. 

^  The  Ethel,  5  Bened.  154  (1871). 

*  Providence  and  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578, 
602  (1883);  Garrison  v-  Memphis  Ins.  Co.,  19  How.  (U.  S.)  312,  315 
(1856);  Airey  v.  Merrill,  2  Curtis  (C.  C),  8  (1854);  Slater  v.  Hayward 
Rubber  Co.,  26  Conn.  128  (1857);  Parker  v.  Flagg,  26  Me.  181  (1846); 
Miller  v.  Steam  Nav.  Co.,  10  N.  Y.  43  (1852);  Gilmore  v.  Carman,  i 
Sme.  and  Marsh.  (9  Miss.)  279  (1843);  Forward  v.  Pittard,  i  T.  R.  27 
(1785);  Hyde  v.  Trent  and  Mersey  Nav.  Co.,  5  lb.  389  (1793).     Under 


ACT   OF  GOD. — PERILS   OF   THE  SEA.  303 

The  term  "inevitable  accident"  is  not  coextensive 
with  tHe  term  "  perils  of  the  seas."  A  carrier  is  not  held 
liable  for  damage  caused  by  an  inevitable  accident, 
although  it  be  not  especially  excepted  in  the  bill  of  lading.^ 
But  this  must  be  understood  with  the  same  qualification 
that  it  must  be  such  an  inevitable  accident  as  comes  under 
the  definition  of  an  act  of  God.^ 

The  construction  to  be  given  to  these  exempting 
clauses  in  a  bill  of  lading  may  be  modified  by  proof  of  the 
attendant  circumstances  and  by  a  due  regard  to  the  other 
clauses  of  the  contract.  For  example,  it  was  held  that 
the  sinking  of  a  wharf  boat  on  which  goods  were  placed, 
awaiting  the  arrival  of  a  boat  on  which  they  were  to  be 
transported,  was  not  loss  or  damage  "  on  the  lakes  or 
rivers  "  within  the  meaning  of  the  bill  of  lading.     This 

a  Louisiana  statute  exempting  carriers  from  the  consequences  of  "acci- 
dents or  uncontrollable  forces,"  it  has,  however,  been  held  that  a  fire 
without  his  fault  was  an  exempted  "accident."  Hunt  z'.  Morris,  6 
Mart.  (La.)  676  (1819). 

^  Morrison  v.  Davis,  20  Penn.  St.  171  (1872).  In  this  case  the 
shipper  was  allowed  to  introduce  advertisements  and  circulars  issued  by 
the  carrier  to  show  that  it  was  the  intention  of  the  parties  that  the  car- 
rier should  be  liable  even  for  inevitable  accidents.  But  see  Chap.  XII, 
sect,  3,  ante,  p.  263. 

An  express  agreement  of  a  carrier  to  become  liable  for  such  acci- 
dents would  be  valid.     Gaither  v.  Barnet,  2  Brev.  (S.  C)  488  (181 1). 

But  an  agreement  to  deliver  absolute  in  its  terms  is  not  so  construed. 
Price  V.  Hartshorn,  44  N.  Y.  94  (1870);  affg.  s.  c.  44  Barb.  655 
(1865);  see,  also,  N.  Y.  Cent.  R.  R.  v.  Standard  Oil  Co.,  87  N.  Y. 
486  (1882). 

If,  however,  the  agreement  was  to  deliver  within  a  certain  time  and 
extra  freight  was  paid,  the  obligation  would  then  become  absolute. 
Harmony  v.  Bingham,  12  N.  Y.  99(1854);  affg.  s.  c  i  Duer,  209  (1852); 
and  see  Cowley  v.  Davidson,  13  Minn.  92  (1868). 

And  though  a  sudden  and  violent  flood  is  an  act  of  God,  yet  if  there 
was  opportunity  to  remove  the  goods  and  avoid  damage,  the  carrier  is 
liable.  Read  v.  Spaulding,-  5  Bosvv.  (N.  Y.)  395  (1859);  Wallace?'. 
Clayton,  42  Ga.  443  (187 1).  And  where  the  carrier  unduly  delayed  in 
forwarding  goods  subsequently  frozen  in  his  station  he  is  not  dis- 
charged.    Curtis  V.  Chicago  &  N.  W.  R.  R.,  18  Wis.  312  (1864). 

2  Ante,  p.  296,  n.  i.  The  cases  cited  in  note  i,  p.  303,  are  illustra- 
tions of  the  text  to  that  note. 


304  THE    MODERN    I,AW    OF   CARRIERS. 

wharf  boat  was  used  as  a  warehouse  by  the  railroad  com- 
pany, and  the  Court  held  that  "  on  the  rivers  "  meant  in 
the  navigation  of  the  rivers/ 

The  cases  which  have  already  been  cited  in  this  sec- 
tion, as  well  as  some  others  which  follow,  show  that  it  is 
sometimes  very  difficult  to  properly  apply  the  maxim 
'''causa  proxima  non  remota  spedatur''''  in  the  determina- 
tion of  cases  where  negligence  and  other  causes,  such  as 
storms  and  winds,  combine  to  produce  damage.  In  suits 
between  the  carrier  and  the  underwriter,  the  courts  have 
adhered  strictly  to  the  rule.  It  is  true  that  the  under- 
writer does  not  ordinarily  insure  against  the  gross  negli- 
gence of  the  carrier.  But  still  he  is  an  insurer,  and 
courts  have  often  held  that  a  disaster  was  caused  by  one 
of  the  perils  insured  against  on  the  ground  that  this  was 
the  immediate  cause  {causa  proximci)  of  the  loss,  when, 
if  the  action  had  been  upon  the  bill  of  lading  and  between 
the  shipper  and  carrier,  it  would  have  been  held  that  the 
negligence  of  the  carrier  was  the  efficient  cause  {causa 
causans)?' 

^  St.  Louis  &  S.  E.  R.  Co.  v.  Smuck,  49  Ind.  302  (1874);  Bazin  v. 
Steamship  Co.,  3  Wall.  J.  229  (1857);  Mahone  v.  Olive  Branch,  18  La. 
Ann.  107  (1866). 

^  General  Mutual  Insurance  Co.  v.  Sherwood,  14  How.  (U.  S.)  351, 
366  (1852);  Fireman's  Insurance  Co.  v.  Powell,  13  B.  Munroe  (Ky.), 
311  (1852);  Hagar  v.  New  England  Ins.  Co.,  59  Me.  460  (1871); 
Georgia  Insurance  Co.  v.  Dawson,  2  Gill  (Md.).  365  (1844);  Parkhurst 
V.  Gloucester  Insurance  Co..  100  Mass.  301  (1868);  Copeland  v.  New 
England  Insurance  Co.,  2  Mete.  (Mass.)  432  (1841);  Matthews  v.  How- 
ard Ins.  Co.,  II  N.  Y.  9  (1854);  rev'g.  s.  c  13  Barb.  (N.  Y.)  234  (1852); 
Davidson  v.  Burnand,  L.  R.  4  C  P.  117  (1868);  The  Warkworth,  L.  R. 
9  Prob.  Div.  145;  s.  c.  51  Law  T.  Rep.  (N.  S.)  558  (1884).  This  was 
a  case  where  the  immediate  cause  of  a  collision  was  the  way  one  of  the 
ships  was  steered.  This  was  due,  not  to  the  negligence  of  the  master, 
but  to  a  defect  in  the  steering  gear.  It  was  not  shown  how  this  defect 
was  caused,  but  Sir  Jas.  Hannen  held  the  ship  liable.  Of  this  Brett,  Vl. 
R.,  says  (p.  147):  "  It  was  the  act  of  a  person  for  whose  care  and  skill 
the  owner  was  responsible,  and  it  has  been  held  that  the  negligence  was 
the  causa  causans  of  the  collision,  though  the  causa  proxima  was  the 
inability  of  the  captain  to  avoid  the  other  ship,  and  that  inability  was 
the  consequence  of  the  negligence  of  the  owner's  servants."     This  quo- 


ACT   OF   GOD. — PERILS   OF   THE   SEA.  305 

The  maxim  is  often  quoted  in  decisions  on  bills  of  lad- 
ing, but  the  distinction  just  referred  to  has  not  always 
been  observed.^  In  The  Portsmouth  it  was  said  that 
"  though  the  peril  of  the  sea  may  be  nearer  in  time  to  the 
disaster  the  efficient  cause,  without  which  the  peril  would 
not  have  happened,  is  regarded  as  the  proximate  cause ; 
and  there  is,  perhaps,  greater  reason  for  applying  the  rule 
to  contracts  of  common  carriers  than  policies  of  insurance, 
for,  in  general,  negligence  of  the  insured  does  not  relieve 
the  insurer.''  This  is  perhaps  the  safe  rule,  and  the 
court  should  always  look  at  the  real  cause  of  the  injury 
and  not  speculate  or  refine  as  to  its  ultimate  cause. 

For  example,  if  the  voyage  is  prolonged  by  the  perils 
of  the  seas,  or  the  vessel  is  obliged  by  such  perils  to  put 
into  port  in  distress,  the  carrier  will  not  be  responsible 
for  injury  to  cargo,  perishable  in  its  nature,  caused  by 
delay.^ 

tation  from  the  official  report  is  condensed  from  the  report  in  Law 
Times,  p.  559.  In  Hamilton  v.  Pandorf,  12  App.  Co.  518  (1887),  the 
Court  criticises  the  attempt  to  give  to  words  in  a  bill  of  lading  a  mean- 
ing different  from  that  of  the  same  words  in  a  policy  of  insurance. 

1  The  Portsmouth,  9  Wall.  685  (1869);  The  Titania,  19  Fed.  Rep. 
104(1883);  Jones  Z'.  Pitcher,  7  Ala.  (O.  S.)  180  (1833);  Packard  v. 
Taylor,  35  Ark.  411  (1880);  Ewart  v.  Street,  2  Bailey  (S.  C),  162 
(1831). 

*  The  CoUemberg,  i  Black  (U.  S.),  170  (1861);  The  Gentleman, 
01c.  Adm.,  no  (1845).  I"  such  case  the  carrier  is  not  liable,  even  if  it 
appear  that  by  the  exercise  of  extraordinary  care  the  injury  might  have 
been  averted,  if  the  master  used  his  best  judgment.  The  CoUemberg, 
ante.  But  see  Sherman  v.  Inman  Steamship  Co.,  26  Hun,  107  (1882), 
and  cases  cited  note  i,  p.  t^w,  post.  If  the  necessity  for  the  deviation  had 
been  caused  by  an  unseaworthy  vessel  or  defective  supplies,  and  the 
weather  had  really  not  been  unusually  severe,  or  worse  than  might  have 
been  expected  at  the  time  of  the  year,  the  carrier  will  be  liable.  Marck- 
wald  V.  Oceanic  Steam  Nav.  Co.,  11  Hun,  462  (1877).  When  an  injury 
to  a  canal  boat  by  sudden  storm  and  flood  might  have  been  avoided 
but  for  the  lameness  of  the  horse  drawing  it,  held  that  the  carrier  would 
not  be  liable  unless  he  had  expressly  agreed  to  insure.  Morrison  v. 
Davis,  20  Penn.  St.  171  (1852).  When  a  loss  within  the  exception  of 
the  contract  is  occasioned  by  previous  neglect  of  the  carrier,  without 
which  it  would  not  have  happened,  he  is  not  excused.  If  such  a  loss  is 
unavoidably  caused  by  the  excusable  delay  of  the  carrier  he  will  not  be 
20 


3o6  THE   MODERN   LAW   OF   CARRIERS. 

So  in  Astrup  v.  Lewy/  the  Court  was  satisfied  that  the 
storm  was  not  of  sufficient  severity  to  have  produced  the 
injury,  and  that  this  was  really  caused  by  over-loading. 
It  therefore  held  that  the  real  or  proximate  cause  was  the 
over-loading.  But  whenever  the  decision  of  that  question 
depends  upon  evidence  as  to  the  violence  of  the  wind,  and 
the  relative  probability  of  whether  a  disaster  is  caused  by 
a  storm  of  unusual  violence  or  b}^  bad  stowage,  the  de- 
cision might  well  be  different  in  actions  between  different 
parties  between  whom  the  presumptions  and  burden  of 
proof  might  be  different. 

In  General  Mutual  Ins.  Co.  v.  Sherwood,^  the  carrier 
sought  to  recover  from  the  underwriter  damages  he  had 
to  pay  another  vessel,  for  injuries  to  her  caused  by  colli- 
sion with  his  own  ship.  It  was  held  that  the  fact  that  he 
had  to  pay  these  damages  was  conclusive  evidence  that 
his  negligence  was  the  proximate  cause  of  the  collision. 
In  fact,  he  was  obliged  to  aver  this  in  his  pleading.^ 

So  when  bad  weather  induces  the  stranding  of  a  ves- 
sel it  is  ordinarily  a  peril  of  the  sea,  but  not  if  it  was  to 
be  foreseen  and  might  have  been  avoided,* 

These  cases,  when  taken  in  connection  with  what  has 
heretofore  been  said,    seem  to  supply  an  explanation  of 

liable.  But  if  although  the  delay  be  the  proximate  cause  of  the  loss", 
the  real  and  efficient  cause  be  the  neglisjence  of  the  carrier,  he  is  not 
excused.  Bills  v.  N.  Y.  Central  R.  R.,'"84  N.  Y.  5  (1881).  It  will 
readily  be  seen  how  much  might,  in  such  a  case,  depend  upon  which 
side  is  the  burden  of  proof. 

1  19  Fed  Rep.  536  (1884). 

2  14  How.  (U.S.)  351  (1852). 

^  Matthews  z'.  Howard  Ins.  Co.,  11  N.  Y.  9  (1854),  is  a  similar 
case. 

*  The  Costa  Rica,  3  Sawyer,  540  (1875).  In  this  case  perils  of  the 
sea  were  excepted  in  the  bill  of  lading.  The  Portsmouth,  9  Wall.  685 
(1869);  The  Mohler,  21  Wall.  233  (1874);  The  Rocket,  i  Bissell,  354 
(i860);  Richards  v.  Gilbert,  5  Day  (Conn.),  415  (1813).  In  Nills  v. 
Mackill,  36  Fed.  Rep.  702  (1888),  coal  dust  sifting  through  seams  in 
a  bulkhead  was  held  not  ordinarily  to  be  a  peril  of  the  sea,  but  it  was 
said  if  the  seams  had  been  opened  by  a  storm  it  might  be. 


ACT   OF  GOD. — PERILS   OF  THE  SEA.  307 

many  others  where  the  maxim  is  seemingly  not  applied. 
We  have  seen  that  the  ordinary  perils  of  navigation  are  not 
regarded  as  included  in  the  term  "Act  of  God,"  but  only 
such  as  cannot  with  the  exercise  of  ordinary  foresight  and 
skill  in  navigation  be  guarded  against.  A  gale  of  wind 
may  be  moderate  or  it  may  be  violent.  In  the  former  case 
damage  resulting  from  it  may  be  said  to  be  caused  by  a 
peril  of  the  sea,  but  cannot  be  regarded  as  an  Act  of  God. 
Thus,  it  has  been  held  that  if  a  flaw  of  wind  which  cap- 
sizes a  boat  is  unusual  and  not  to  be  expected  and  the 
boat  is  not  over-loaded,  the  loss  can  justly  be  said  to  be 
caused  by  an  "Act  of  God."  But  the  court  said  it  would 
be  otherwise  if  such  flaws  were  of  common  occurrence.^ 

It  is  the  carrier's  duty,  as  has  been  shown,  to  take  all 
reasonable  and  prudent  precautions  to  guard  against  the 
perils  incident  to  the  transportation,  either  of  passengers 
or  freight.  If  notwithstanding  the  use  of  such  precautions 
the  injury  is  caused  to  his  vessel  or  other  vehicle  of  trans- 
portation by  one  of  the  excepted  perils,  he  is  bound  to  use 
reasonable  diligence  to  extricate  his  passengers  and  cargo 
from  the  consequences  of  the  disaster.  If  he  fail  to  do 
so,  he  is  not  entitled  to  the  benefit  of  the  exemption  pro- 
vided for  by  his  bill  of  lading.^ 

^  Spencer  v.  Dagget,  2  Vt.  92  (1829);  S.  P.  Jones  v.  Pitcher,  7  Ala. 
(O.  S.)  135  (1833). 

^  Railroad  Co.  v.  Varnell,  98  U.  S.  479  (1878);  Propeller  Niagara 
V.  Cordes,  21  How.  U.  S.  7  (1858);  Strouss  v.  Wabash,  St.  L.  &.  P.  R. 
Co.,  17  Fed.  Rep.  209  (1883);  The  Nith,  36  Fed.  Rep.  86  (1888);  The 
Ocean' Wave,  3  Bissell,  317  (1872);  King  v.  Shepard,  3  Story,  349 
(1844);  Steamboat  Co.  v.  Bason,  Harper  (S.  C),  262  (1824);  Bird  v. 
Cromwell,  i  Missouri,  81  (1821);  Ewart  v.  Street,  2  Bailey  (S.  C),  157 
(1831). 

The  Portsmouth,  2  Bissell,  59  (1868).  At  p.  61,  Drummond,  J., 
says  :  "  After  the  vessel  is  stranded  the  master  is  bound  to  take  all  pos- 
sible care  of  the  cargo."  This  was  afifirmed,  9  Wall.  682  (1869).  At  p. 
687,  the  Court  say  :  "The  conduct  of  the  master  after  the  vessel  was 
stranded  was  entirely  unjustifiable.  It  was  his  duty  even  then  to  take 
all  possible  care  of  the  cargo.  He  was  bound  to  the  utmost  exertion  to 
save  it.  Losses  arising  from  dangers  of  navigation,  within  the  meaning 
of  the  exception  in  the  bill  of  lading,  are  such  only  as  happen  ia  spite 


308  THE   MODERN   LAW   OF   CARRIERS. 

There  are  perils  of  inland  navigation  which  never  en- 
tered into  the  consideration  of  navigators  by  sea.  Among- 
these  are  floods  and  low  water,  which  equally  embarrass 
the  steamboats  of  the  west.  It  was  held  in  one  case  that 
low  water  was  not  a  peril  of  navigation.^ 

But  this  decision  is  hardly  sustainable  on  principle. 
Low  water  is  a  danger  incident  to  transportation  by  river 
just  as  much  as  stranding  is  to  carriage  by  sea.  It  was 
very  properly  held  in  another  case  that  a  carrier  who  had 
agreed  to  transport  goods  by  river,  without  stipulating  for 
any  particular  boat,  had  no  right  to  wait  two  months  till 
the  river  rose  high  enough  to  float  his  own  boat,  but  was 
bound  to  forward  the  goods  by  a  boat  of  lighter  draft  if 
he  could,  and  consequently  that  low  water  under  such  cir- 
cumstances was  not  a  peril  of  navigation.^ 

While  the  weight  of  authority  is  that  interruption  of 
navigation  by  low  water  will  excuse  delay  on  the  part  of 
the  carrier,^  it  does  not  follow  that  it  will  excuse  absolute 

of  the  best  human  exertions,  which  cannot  be  prevented  by  human 
skill  and  prudence."  In  this  case  the  steamer  ran  aground,  no  lighter 
was  sent  for  and  no  effort  made  to  save  the  cargo,  but  the  salt  in  ques- 
tion was  jettisoned.     The  steamer  was  held  liable. 

It  was,  however,  held  in  one  case  that  where  wheat  was  wetted  by  in- 
evitable accident,  the  carrier  was  not  liable  for  the  loss,  although  he  might 
have  dried  it.  The  Lynx  v.  King,  12  Missouri,  272  (1848).  The  Court 
in  this  case  state  the  law  as  in  the  text,  but  as  drying  the  wheat  would 
have  involved  a  suspension  of  the  voyage  and  possible  injury  to  other 
cargo,  it  was  held  better  judgment  for  the  captain  to  proceed  without 
drying  it. 

^Cowley  V.  Davidson,  13  Minn.  92  (1868).  In  Chicago,  B.  &  Q.  R. 
Co.  V.  Manning,  37  N.  W.  Rep.  (Nebraska),  462  (1888),  it  was  held  that 
high  water  was  not  an  excuse  for  delay  unless  it  appeared  that  it  could 
not  have  been  anticipated  and  avoided.  Usually  the  burden  would  be 
on  the  plaintiff  to  show  that  the  injury  could  have  been  avoided,  al- 
though its  cause  was  a  peril  excepted  by  the  bill  of  lading.  See  Chap. 
XII,  p.  257,  notes  2,  3,  ante. 

^  Collier  v.  Swinney,  16  Missouri,  484  (1852). 

In  Eveleigh  v.  Sylvester,  2  Brev.  (S.  C.)  178  (1807),  a  steamer  struck 
an  unknown  snag,  and  it  was  held  an  unavoidable  peril  and  the  carrier 
not  liable. 

^  Parsons  v.  Hardy,  14  Wend.  215  (1835);  Bonner  v.  Merch.  Steam- 
boat Co.,  I  Jones  (Law)  (N.  C.),  211   (1853).     But  low  water  does  not 


ACT   OF  GOD. — PERILS   OF  THE  SEA.  309 

failure  to  deliver  the  goods.  When,  therefore,  the  carrier 
stored  the  goods  in  a  warehouse  pending  such  delay  and 
they  were  burned  in  the  warehouse,  he  was  held  liable. 
The  immediate  cause  of  the  injury  was  the  fire,  not  the 
low  water,  and  this  fire  occurred  while  his  liability  as 
carrier  continued.^ 

The  general  rule  on  this  subject  is  that  a  temporary 
obstruction  to  navigation,  even  if  it  compels  the  carrier  to 
unload  the  goods,  will  not  excuse  him  from  carrying  the 
goods  to  their  destination  as  soon  as  navigation  is  re- 
sumed.^ 

The  carrier  is  not  liable  for  injury  caused  by  a  sudden 
and  violent  flood.*^ 

Interruption  to  navigation  by  frost  or  ice  is  an  Act  of 
God.* 

excuse  delay  where  the  carrier  has  made  an  express  contract  to  deliver 
in  a  specified  time.  Cowley  v.  Davidson,  13  Minn.  92  (1868).  See 
Harmony  v.  Bingham,  12  N.  Y.  99  (1854).  Even  if  the  carrier  in  such 
contract  excepts  unavoidable  delay,  he  will  not  be  excused  if  he  knew 
of  the  particular  cause  of  delay  at  the  time  of  his  making  the  contract. 

Place  V.  Union  Exp.  Co.,  2  Hilt.  (N.  Y.)  19  (1858). 

^  Cox  V.  Peterson,  30  Ala.  608  (1857). 

^  The  Nathaniel  Hooper,  3  Sumner,  543  (1839);  Lowe  v.  Moss,  12 
111.  477  (185 1).     See  ante,  p.  308,  n.  3. 

But  if  the  obstacle  to  navigation  be  permanent  it  discharges  the 
carrier  from  obligation  to  transport  the  goods  to  their  destination.  He 
must  in  such  case  deliver  them  to  the  owner.  Bork  v.  Norton,  2  Mc- 
Lean, 422  (1841). 

'  Davis  V.  Wabash  &  St.  Louis  R.  R.,  89  Mo.  340  (1886).  The  vio- 
lence of  a  cross  current,  due  to  the  great  height  of  water  prevailing  at  the 
time,  is  a  danger  of  river  navigation.  The  Farragut,  10  Wall.  334,  339 
(1870). 

*  West  z'.  The  Berlin,  3  Iowa,  532  (1856);  Bork  v.  Norton,  2  Mc- 
Lean, 422  (1841). 

In  West  V.  The  Berlin,  it  was  said  that  in  case  the  voyage  was 
stopped  for  the  season  the  master  might  store  the  goods  for  the  winter. 
But  there  was  evidence  of  a  parol  agreement  that  he  should  do  so.  In 
Bork  V.  Norton  it  is  intimated  that  it  might  be  his  duty  to  forward  by 
land.  All  these  cases  hold  that  if  the  consignee  takes  the  goods  at  the 
point  of  stoppage,  the  carrier  can  recover  pro  rata  freight.  In  the  Ber- 
lin case,  also,  it  was  held  the  carrier  was  bound  to  provide  a  suitable 
boat,  though  the  shipper  knew  the  character  of  the  one  on  which  the 
goods  were  to  be  shipped.     While  in  Bell  71.  Read,  4  Binn.   (Penn.)  127 


3IO  THE   MODERN   LAW   OF   CARRIERS. 

There  are  certain  causes  of  injury,  sucH  as  leakage, 
dampness,  and  the  like,  which  are  often  especially  excepted 
in  bills  of  lading.  But  it  is  immaterial  whether  or  not 
these  are  specifically  excepted,  if  the  efiicient  cause  of 
damage  be  the  "  Act  of  God."  In  such  case  the  carrier  is 
not  liable.^  In  one  case  it  was  held  that  such  exemptions 
do  not  enlarge  the  shipper's  liability  for  freight,  and  that, 
therefore,  the  carrier  could  not  recover  freight  for  goods 
rightfully  jettisoned.^  In  the  Nathaniel  Hooper,^  how- 
ever, the  Court  said  of  cargo  jettisoned,  that  it  was  "  a  case 
of  general  average  to  be  borne  by  the  ship,  freight  and 
cargo  ultimately  saved,  and,  ...  of  course,  the  en- 
tire freight  of  the  cargo  jettisoned  is  to  be  added  to  the 
loss  and  allowed  to  the  ship  owner." 

The  explosion  of  a  boiler  on  a  steamboat  is  not  a  peril 
of  navigation."^ 

In  the  cases  that  have  been  considered  in  this  chapter, 
the  weight  to  be  given  to  the  judgment  of  the  master  of  a 
ship  in  time  of  peril  or  emergency  has  been  frequently 
discussed.  It  is  plain  that  he  is  not  bound  to  decide  upon 
and  adopt  a  course  which  subsequent  events  will  show  to 
have  been  the  best  that  could  have  been  adopted.  The 
courts  will  not  subject  the  carrier  or  the  master  employed 
by  it  to  any  such  rigorous  rule.  It  frequently  happens 
that  the  course  which  the  master's  judgment,  under  the 
circumstances  as  they  appear  at  the  time,  indicates  to  be 


(1810),  it  was  said  that  to  be  seaworthy  a  vessel  need  only  to  be  fit  for 
the  service  she  undertakes. 

^  1,200  Pipes,  5  Bened.  402  (1871). 

2  The  Cuba,  3  Ware,  360  (i860). 

In  this  case,  also,  certain  casks  were  stove  in  during  a  storm  and 
their  contents  partially  wasted.  The  carrier  claimed  full  freight  but 
the  court  only  allowed  freight  on  the  portion  delivered. 

3  3  Sumner,  543  (1839). 

*  Bulkley  v.  Naumkeag  Steam  Cotton  Co.,  24  How.  (U.  S.)  386 
(i860);  aff'g  The  Edwin,  i  Sprague,  477  (1859);  The  Mohawk,  8  Wall. 
162  (1868);  McCall  V.  Brock,  5  Strob.  (S.  C.)  119  (1850). 


PUBLIC    ENEMY. — VIS    MAJOR.  311 

the  most  prudent  and  expedient  is  shown  by  subsequent 
occurrences  to  have  been  unwise.  But  if  the  facts  as  they 
appear  at  the  time  are  such  as  to  lead  an  experienced  and 
intelligent  navigator  to  conclude  that  a  particular  course 
is  the  wisest  one  to  adopt,  the  carrier  will  not  be  liable, 
although  it  should  subsequently  appear  that  a  different 
one  would  have  been  the  course  of  safety.^ 

It  is  the  duty  of  the  master  in  cases  of  emergency  to 
consider  first  the  safety  of  life,  and  after  that  the  preser- 
vation of  property.^ 


SECTION    IV. 

PUBLIC  ENEMY,  AND  CASES  OF  VIS  MAJOR,  INCLUDING  IN  THE 
LATTER  THE  PUBLIC  AUTHORITIES,  STRIKES,  MOBS 
PIRATES.  ROBBERS  AND  THIEVES. 

The  common  law  liabilities  of  carriers  did  not  extend 
to  losses  caused  by  the  acts  of  the  public  enemy.  But  the 
construction  to  be  given  to  these  words  has  in  recent  years 
been  much  considered,  under  circumstances  to  which  the 
rule  as  originally  laid  down  had  never  been  applied.  The 
course  of  decisions  on  this  subject  is  an  apt  illustration  of 
the  flexibility  of  the  common  law. 

Some  of  these  cases  arose  at  the  outbreak  of  the  war  on 
the  part  of  the  Southern  States,  In  one  case,  goods  which 
had  been  received  in  New  York  April  lo,  i86i,tobetrans- 

1  Propeller  Niagara  v.  Cordes,  21  How.  (U.  S.)  7  (1858);  The 
Portsmouth,  2  Bissell,  56  (1868);  Lawrence  z^  Minturn,  17  How.  (U.  S.) 
100  (1854).  But  in  an  action  for  subtraction  of  freight,  where  the  ves- 
sel was  originally  delayed  by  negligence  and  charged  high  rates  of 
freight  in  consideration  of  meeting  boisterous  fall  weather,  an  error  in 
judgment  of  the  master  in  laying  up  for  the  winter  when  unnecessary, 
was  held  to  prevent  the  recovery  of  more  than  the  spring  rates.  There 
is,  however,  an  obvious  difference  between  actions  to  recover  freight 
which  had  not  been  earned  and  actions  for  loss  and  injuries.  Holland 
V.  725  tons  of  Coal,  36  Fed.  Rep.  784  (1888).     See  post,  p.  314,  n.  i. 

"^  Sherman  v.  The  Inman  S.  S.  Co.,  26  Hun,  107  (1881);  Turner  v. 
Protection  Ins.  Co.,  25  Maine,  515  (1846). 


312         THE  MODERN  LAW  OF  CARRIERS. 

ported  to  Rome,  in  Georgia,  did  not  reach  Savannali  until 
the  last  of  April,  where  they  were  seized  by  an  officer  of 
the  Confederate  Government,  placed  in  a  bonded  ware- 
house, and  subsequently,  after  notice  to  the  consignee,  sold 
for  failure  to  pay  duties  imposed  upon  them  by  that  Gov- 
ernment. It  was  held  that  under  such  circumstances  the 
carrier  was  not  liable,  but  that  it  had  been  deprived  of 
them  by  an  act  of  the  public  enemy.^ 

A  band  of  marauding  Indians  are  "  public  enemies," 
and  the  carrier  is  not  liable  for  goods  forcibly  taken  by 
them.^ 

In  analogy  to  this  rule  it  has  been  held  that  the  carrier 
is  not  liable  for  not  delivering  goods  at  the  pier,  when  such 

1  Hubbard  v.  Harnden  Ex.  Co.,  lo  R.  I.  244  (1872).  This  case  was 
decided  on  the  authority  of  The  Protector,  12  Wall.  700  (1871),  in 
which  it  was  held  that  the  insurgents  in  the  Southern  States  were  public 
enemies  at  least  from  the  time  of  the  proclamation  declaring  a  blockade. 
To  the  same  effect  are  Lewis  v.  Ludwick,  6  Coldw.  (Tenn.)  368 
(1869);  Bland  v.  Adams  Ex.  Co-,  i  Duval  (Ky.),  232  (1864). 

The  converse  was  held  in  Southern  Ex.  Co.  v.  Womack,  i  Heisk. 
(Tenn.)  256  (1870).  In  this  case  the  goods  were  taken  by  United  States 
troops  from  a  Confederate  carrier,  and  the  carrier  was  exonerated  on 
the  ground  that  they  were  taken  by  the  public  enemy.  M'cCranie  v. 
Wood,  24  La.  Ann.  406  (1872). 

In  Caldwell  v.  Southern  Ex.  Co.,  i  Flipp,  85  (1866),  a  carrier  operat- 
ing within  the  Confederate  lines  claimed  that  he  was  not  liable  for  a 
seizure  by  United  States  troops.     The  point  was  not  decided. 

In  Gage  v.  Tirrell,  91  Mass.  299  (1864),  the  question  was  raised 
whether  Confederate  cruisers  were  public  enemies.  The  Court  say: 
"  If  they  can  be  regarded  as  agents  of  a  de  facto  government  engaged 
in  an  actually  existing  war  with  the  U.  S.,  then  the  loss  happened  in 
consequence  of  a  seizure  by  a  public  enemy."  "  If  not  they  are  pirates, 
and  pirates  are  perils  of  the  seas  avithin  the  exception  of  the  bill  of  lading, 
lb.  308,  309.  In  Dole  v.  N.  E.  Ins.  Co.,  88  Mass.  373  (1863),  which 
was  an  action  on  a  policy  of  insurance  against  piracy  which  excepted 
''  capture,"  it  was  held  that  Confederates  were  not  pirates,  but  public 
enemies." 

Where  goods  were  seized  or  destroyed  by  Confederate  troops,  with- 
in the  Confederate  lines,  it  was  held  that  the  carrier  was  not  liable,  al- 
though the  Court  declined  to  hold  that  it  was  the  act  of  the  public  ene- 
my. It  was  said  to  be  analogous  to  the  case  of  goods  taken  from  the 
carrier  by  attachment.  Nashville  &  C.  R.  R.  v.  Estes,  10  Lea  (Tenn.), 
749  (1882). 

^  HoUaday  v.  Kennard,  12  Wall.  254  (1870). 


PUBLIC    ENEMY. — VIS    MAJOR.  313 

delivery  was  prevented  by  quarantine  regulations  at  the 
port  of  delivery.^  But  on  the  other  hand  it  has  been  held 
that  if  there  be  an  express  covenant  to  take  on  board 
cargo  at  a  foreign  port,  the  quarantine  regulations  of 
that  port,  even  though  they  render  the  shipment  unlaw- 
ful, constitute  no  defense  to  the  carrier  in  an  action  upon 
the  covenant.^  And  the  unlawful  act  of  an  officer  of  the 
carrier  s  own  government  constitutes  no  defense  to  the  car- 
rier, for  a  failure  to  deliver  the  goods,  or  for  delay  in  their 
delivery.*^ 

We  have  seen  in  the  previous  section  that  although  a 
carrier  is  not  ordinarily  liable  for  losses  occurring  by  the 
Act  of  God,  he  may  by  special  contract  make  himself  so. 
He  may  in  like  manner  make  himself  liable  by  express 
contract  for  acts  of  the  public  enemy.  Such  a  contract 
should,  however,  be  explicit,  and  is  not  to  be  inferred  from 
an  agreement  to  deliver  goods  within  a  specified  time.  A 
contract  of  this  latter  description  does  not  of  itself  imply 
liability  for  losses  from  the  public  enemy.'* 

^  Bradstreet  v.  Heron,  i  Abb.  Adm.  209  (1848).  But  in  this  case  the 
cargo  was  placed  onboard  the  consignee's  lighters.  In  Spence  v.  Chad- 
wick,  10  Qu.  B.  517  (1847);  a  different  rule  was  applied  to  the  case  of  a 
seizure  of  goods,  pursuant  to  the  Spanish  law.  See  cases  cited  in  the 
following  note. 

^  Barker  z^.  Hodgson,  3  Maule  &  Sel.  267  (1815).  It  was  admitted 
in  this  case  that  if  the  performance  of  the  covenant  had  become  un- 
lawful by  the  law  of  England,  the  carrier  would  have  been  discharged 
from  liability.  The  Court  does  not  advert  to  the  rule  that  the  law  of  the 
place  of  performance  should  govern.  See  this  whole  subject  treated  in 
Chap.  VIII.  In  Hillz;.  Idle,  4  Campb.  328  (1815),  the  rule  stated  in 
the  text  was  applied  to  the  case  of  a  consignee,  and  it  was  held  that  he 
was  bound  to  remove  the  goods  within  a  reasonable  time  and 
was  liable  in  damages  if  he  did  not  do  so,  although  the  delay  was 
caused  by  a  government  regulation.  See,  also,  Rowland  v.  Miln,  2  Hilt. 
150  (1858).     Hedley  v.  Clark,  8  Term.  Rep.  259  (1799). 

^  Evans  v.  Hutton,  4  Mann.  &  G.  963  (1842)  ;  Gosling  v.  Higgins,  i 
Campb.  451  (1808);  Rowland  v.  Miln,  2  Hilt.  150  (1858);  Seligman  v. 
Armijo,  i  New  Mexico,  462  (1870).  See  Porcher  v.  Northeastern  R.  R. 
14  Rich.  Law  (S.  C),  loi  (1867).     See  post,  p.  316. 

*  Strohn  v.  Detroit  &.  M.  R.  R.,  23  Wis.  131  (1868);  Afite,  p.  303, 
n.  I.     A  case  arose  in  Illinois  of  a  shipment  over  a  railroad  of  which  the 


314  THE   MODERN   LAW   OF   CARRIERS. 

The  rule  as  to  loss  or  damage  resulting  partly  from 
the  carrier's  negligence  and  partly  from  a  cause  which  is 
classed  as  an  ''  Act  of  God  "  was  discussed  in  the  last  sec- 
tion. The  same  considerations  apply  to  the  acts  of  public 
enemies.  The  carrier  is  bound  to  use  due  precaution 
against  capture  and  due  diligence  to  rescue  property  that 
has  been  captured.  Although  it  is  not  an  insurer  against 
such  losses,  it  is  still  a  bailee  and  bound  to  ordinary  and 
reasonable  care.  In  a  case  where  property  in  the  carrier's 
hands  was  seized  by  hostile  troops,  the  Court  held  that  it 
should  have  used  the  same  diligence  to  remove  the  prop- 
erty of  the  shipper  that  it  used  in  regard  to  its  own.^ 

Some  of  the  most  interesting  occasions  for  the  applica- 
tion of  the  rule  under  consideration  in  this  section  have 
arisen  in  the  case  of  strikes  by  the  workmen  and  em- 
ployes of  railroad  companies,  and  violence  and  intimida- 
tion b}^  the  strikers,  with  a  view  of  preventing  the  carrier 
from  employing  new  agents  or  preventing  those  who  did 
not  strike  and  who  were  ready  and  willing  to  work  from 
working.  After  considerable  discussion  the  courts  have 
held  that  a  carrier  under  such  circumstances  is  not  liable 


United  States  authorities  had,  under  the  law,  assumed  military  posses- 
sion ;  the  carrier  continuing  to  operate  it  under  the  direction  of  the 
military.  It  was  held  that  the  carrier  was  not  liable  for  a  refusal  to 
carry,  but  that  if  it  received  goods  and  issued  its  bills  of  lading  for 
them  without  exception  or  limitation,  it  would  be  liable  as  a  common 
carrier.  Phelps  v.  Illinois  Central  R.  R.,  94  111-  556  (1880).  On  a  dif- 
ferent state  of  facts  the  Appellate  court  had  previously  decided  this  case 
differently,  but  the  doctrine  laid  down  was  the  same  in  both  decisions, 
s.  c.  4  Brad.  247  (1879). 

1  Caldwell  v.  So.  Ex.  Co.  (W.  Dist.  Tenn.)  i  Flipp.  85  (1866).  So 
where  a  vessel  was  captured  by  a  Confederate  cruiser,  but  the  captain 
was  allowed  to  remove  the  personal  effects  of  the  passengers.  In  some 
unexplained  way  he  lost  the  baggage  of  one  of  them.  Held  that  the 
carrier  was  liable.  Spaids  v.  N.  Y.  Mail  S.  S.  Co.,  3  Daly,  143  (1869). 
So  it  is  held  to  be  the  duty  of  the  captain  of  a  captured  vessel  to  do 
what  he  can  in  the  prize  court  to  save  neutral  property  from  condemna- 
tion. But  if  the  captain  innocently  make  a  mistake  in  the  course  of 
the  proceeding  the  carrier  will  not  be  held  liable.  Cheviot  v.  Brooks, 
I  Johns.  369  (1806).     See  ante,  p.  311,  n.  i. 


PUBLIC   ENEMY. — VIS   MAJOR.  315 

for  delays  caused  by  the  violent  acts  of  persons  not  in  its 
employ,  although  just  previously  they  had  been.^ 

At  first  sight  these  cases  seem  to  be  an  exception  to 
the  rule  that  mere  mobs,  riots  or  insurrections  are  not  acts 
of  public  enemies,  but  it  is  believed  that  they  stand  on  a 
different  footing.  The  carrier's  obligation  is  merely  to 
deliver  within  a  reasonable  time,  and  this  does  not  mean 
what,  under  usual  circumstances,  would  be  reasonable 
time.  The  actual  circumstances  must  all  be  considered. 
It  follows  that  delay  beyond  schedule  time  (even  when 
owing  to  the  perishable  character  of  the  goods  they  are 
injured  thereby)  is  excused  more  readily  than  an  abso- 
lute loss  of  or  injury  to  goods  in  which  delay  is  not  a 
factor.^ 

1  International  &  G.  N.  R.  Co.  v.  Tisdale,  11  S.  W.  Rep.  (Texas), 
900  (1889);  Haas  V.  Kansas  City,  Ft.  S.  &  G.  R.  Co.,  7  S.  E.  Rep.  (Ga.) 
629  (1888);  Little  V.  Fargo,  43  Hun  (N.  Y.),  233  (1887);  Geismer  v. 
Lake  Shore  &  Mich.  Southern  R.  Co.,  102  N.  Y.  563  (1886);  rv'gs.  c. 
34  Hun,  50  (1884).  It  was  contended  in  this  case  that  as  the  strike  was 
organized  while  the  strikers  were  in  the  employ  of  the  carrier,  the  latter 
was  liable  for  any  consequences  flowing  therefrom,  but  the  Court  held 
that  this  was  a  matter  outside  of  their  employment,  and  did  not  render 
the  carrier  liable,  and  the  real  cause  of  the  delay  was  the  unlawful  con- 
duct and  violence  of  the  strikers  after  they  left  the  carrier's  employ. 

In  Lake  Shore  &  M.  S.  R.  Co.  v.  Bennett,  89  Ind.  457  (1883),  the 
shipper  claimed  that  the  real  cause  of  the  delay  was  the  act  of  the  car- 
rier in  reducing  the  wages  of  its  employes,  and  insisting  upon  maintain- 
ing such  reduction.  This  contention  was  overruled  by  the  Court,  and 
the  carrier  was  held  not  to  be  liable  for  delay  in  delivering  according 
to  the  agreement,  which  was  caused  by  the  strike. 

In  Indianapolis  &  St.  L.  R.  R.  v.  Jungten,  10  111.  App.  295 
(1881),  the  Court  said  that  the  carrier  would  be  liable  for  the  delay 
caused  by  the  refusal  of  its  employes  to  do  their  duty,  but  not  for  de- 
lay caused  by  the  violence  of  those  who  were  no  longer  in  its  employ, 
provided  it  was  diligent  to  secure  the  safety  of  property  in  the  course  of 
transportation. 

It  was,  however,  held  in  White  v.  Missouri  Pacific  R.  Co.,  19  Mo. 
App.  400  (1885),  that  a  strike  of  railway  employes  did  not  excuse  a 
carrier  for  its  total  failure  to  transport  goods  according  to  its  agreement. 
The  Court  put  the  decision  on  the  ground  that  the  agreement  was  abso- 
lute, and  that  strikes  were  not  excepted.     See  ante,  p.  303,  n.  i. 

'^  When  there  was  a  special  contract  that  the  carrier  should  not  be 
liable  for  losses  by  delay,  death  of  live  stock  during  a  delay  caused 
by  a  riot  is  not  a  loss  for  which  the  carrier  is  liable.     The  Court  add. 


3l6  THE    MODERN    LAW    OF   CARRIERS. 

But  mere  refusal  of  the  carrier's  men  to  work,  without 
opposition  to  running'  of  trains,  will  not  excuse  a  carrier 
even  in  delay,  and  though  he  use  diligence  in  trying  to 
get  other  men.' 

The  better  opinion  is  that  a  carrier  who  is  obliged  to 
and  does  deliver  goods  to  the  lawful  authorities  of  the 
country  where  the  goods  are,  either  in  transit,  or  awaiting 
delivery,  or  who  fails  to  carry  them,  owing  to  the  lawful 
order  of  the  Court  having  jurisdiction  of  the  subject  mat- 
ter, is  not  liable  to  the  shipper.^ 

"  Indeed  the  strict  liability  of  common  carriers,  where  they  are  without 
fault  or  negligence,  does  not  seem  to  extend  to  losses  from  delay  in 
transporting  live  stock  and  perishable  property,  though  such  delays  are 
not  caused  by  the  act  of  God  or  the  public  enemies."  Bartlett  v.  Pitts- 
burgh, C.  &  St.  L.  R.  Co.,  94  Ind.  281;  s.  c.  18  Am.  &  Eng.  R.  R.  Cas. 
549  (1883).     See  ante,  p.  105. 

The  same  principle  under  similar  circumstances  was  held  in  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  V.  Hollowell,  65  Ind.  193  (1879),  where  it  was 
expressly  said,  "  Rioters  are  not  public  enemies."  The  Court  say  : 
"  To  make  a  public  enemy,  the  government  of  a  foreign  country  must 
be  at  war  with  the  United  States." 

1  Pittsburgh,  Ft.  W.  &  C  R.  R.  v.  Hazen,  84  111.  36  (1876);  Black- 
stock  V.  Erie  R.  R.,  20  N.  Y.  48  (1859).  This  case  is  cited  approvingly 
in  Geismer  v.  L.  S.  &  M.  S.  R.  Co.,  102  N.  Y.  563  (1886);  ante,  p.  315, 
n.  I.  Compare  Haas  v.  Kansas  City  R.  Co.,  7  S.  E.  Rep.  (Ga.)  629 
(1888). 

^  Stiles  V.  Davis,  i  Black.  lor  (1861);  Wells  v.  Maine  S.  S.  Co.,  i 
Cliff,  232  (1874).  This  latter  case  was  an  action  to  recover  for  liquor 
taken  out  of  the  carrier's  custody  by  the  authorities  of  Maine,  acting 
under  the  Maine  liquor  law.  Bliven  v.  Hudson  R.  R.  R.,  36  N.  Y.  405 
(1867).  The  latter  case  and  Stiles  v.  Davis  were  cases  of  goods  taken 
from  the  carrier  by  the  Sheriff  upon  a  writ  of  attachment.  In  Post  v. 
Koch,  30  Fed.  Rep.  208  (1886),  the  carrier  was  prevented  from  trans- 
porting the  goods,  by  an  injunction,  and  this  was  held  to  relieve  him 
from  liability.  Unless  the  carrier  has  issued  an  assignable  bill  of  lading, 
the  shipper  has  a  right  of  stoppage  in  transitu,  and  if  the  carrier  deliver 
to  him  it  is  immaterial  that  he  exercise  this  power  wrongfully.  The 
Vidette,  34  Fed.  Rep.  397  (1888).     See  arite,  p.  313. 

In  Cook  V.  Holt,  48  N.  Y.  275  (1872),  the  rule  stated  in  the  text  was 
applied  to  the  case  of  an  ordinary  bailment.  It  would  have  been 
otherwise  had  the  sheriff  merely  levied  an  attachment,  but  not  taken 
possession  of  the  goods.  Rogers  v.  Webb,  34  N.  Y.  463  (1865).  The 
true  remedy  of  the  carrier  in  all  these  cases  of  conflicting  claims  is  by 
interpleader.  2  Story  Eq.  §§  814.  817,  a,  b;  City  Bank  of  N.  Y.  v. 
Skelton,  2  Blatch.  14  (1846);    German  Ex.  Bk.  v.  Commrs.  Excise,  6 


PUBLIC    ENEMY. — VIS    MAJOR.  517 

But  in  Massachusetts  it  lias  been  held  otherwise.^ 
The  Court  distinguishes  the  case  from  some  of  those 
just  cited  by  drawing  attention  to  the  form  of  the  action. 
In  Stiles  V.  Davis,  the  action  was  in  trover ;  whereas  the 
Edwards  case  was  an  action  upon  contract.  The  Massa- 
chusetts Court  admitted  that  the  seizure  of  the  goods  by 
the  sheriff  was  not  a  conversion  by  the  carrier,  but  held 
that  it  was  liable  upon  its  contract  for  its  failure  to  de- 
liver them.  The  injustice  and  danger  of  making  the  car- 
rier liable  for  his  obedience  to  legal  process  are  so  obvious 
that  it  seems  probable  that  most  courts  would  follow  the 
decisions  cited  under  note  2  (p.  316),  and  that  the  form  of 
action  would  be  held,  in  this  particular,  to  be  immaterial. 
It  is  usual  in  bills  of  lading  to  except  loss  "  by  pirates." 
Such  losses  now  are  rare,  but  there  was  a  time  when  they 
were  common,  and  when  this  exception  was  important. 
It  seems  clear  that  at  common  law  a  loss  by  pirates  was 
not  considered  to  be  a  loss  by  the  "  public  enemy."  Lord 
Holt  says :  ''  Though  the  force  be  never  so  great,  as  if  an 
irresistible  multitude  should  rob  him,  yet  he  is  chargea- 
ble." '^    It  has  been  in  some  cases  maintained  that  a  loss  by 

Abb.  N.  C.  (N.  Y.)  394  (1879);  Atkinson  v.  Marks,  i  Cowen,  691  (1823); 
Lowe  V.  Richardson,  3  Madd.  Ch.  277  (1818). 

*  Edwards  v.  White  Line  Co.,  104  Mass.  163  (1873).  In  French  v. 
Star  Union  Co.,  134  Mass.  288  (1883),  the  goods  were  not  attached  un- 
til after  the  transit  had  terminated,  and  they  had  been  placed  in  the 
carrier's  Avarehouse,  at  which  time,  according  to  the  Massachusetts  rule, 
his  liability  as  carrier  had  terminated. 

^  Coggs  V.  Bernard,  2  Ld.  Raym.  911  (1702).  In  the  note  to  this 
case  in  i  Smith  L.  C  (9  Am.  Ed.)  367,  the  editor  says:  "By  public 
enemies  we  mean  those  with  whom  the  government  is  at  open  war,  .  . 
but  the  violence  of  mobs,  rioters,  insurgents,  constitutes  no  exception. 
Pirates  come  within  the  exception."  But  the  authority  cited  does  not 
sustain  this  proposition ;  nor  does  the  authority  cited  to  the  same  effect 
in  Story  on  Bailments,  sect.  526.  Barclay  v.  Gana,  3  Doug.  389  (1784), 
holds  that  a  carrier  is  liable  for  a  loss  by  pirates,  if  it  be  not  specially 
excepted  in  the  bill  of  lading.  In  The  Belfast  v.  Boon,  41  Ala.  65  (1867), 
the  same  was  held  of  a  robbery  of  freight  on  an  inland  river,  by  a  body 
of  armed  men,  a  crime  which  had  been  made  piracy  by  Act  of  Congress. 
The  Court  assume,  without  citing  authority,  that  the  carrier  would  not 
be  liable  for  a  loss  by  piracy  on  the  high  seas. 


3l8  THE   MODERN    LAW    OF    CARRIERS. 

pirates  might  justly  be  said  to  be  a  loss  from  "  perils  of 
the  seas."  ^ 

In  any  event,  if  there  be  reason  to  apprehend  danger 
from  violence  the  carrier  is  bound  to  take  reasonable  pre- 
cautions to  guard  against  it,  and  if  he  fail  to  do  so,  he 
is  liable  to  the  shipper,  whether  or  not  the  violence  be 
that  of  the  public  enemy.^ 

The  words  in  a  bill  of  lading — "  loss  by  robbers," — 
imply  loss  by  violence,  as  distinguished  from  secret 
theft.^ 

In  a  later  English  case  it  was  held  that  the  words 
"  loss  by  thieves  "  also  meant  loss  by  violence,  the  latro- 
cinhmi  of  the  civil  law,  as  distinguished  from  furtum.^ 
But  it  is  clearly  pointed  out  by  the  New  York  Court  of 
Appeals  in  The  Spinetti  case  ^  that  the  construction  of  like 
words  in  policies  of  insurance,  such  as  the  ones  stated 
in  this  English  decision,  and  which  words  were  adopted 
from  some  of  the  text  writers,  was  based  on  "  a  want 
of  attention  to  the  ground  upon  which,  in  earlier  times,  a 
loss  by  theft  was  not  deemed  covered  by  insurance,  while 
a  loss  by  piracy  or  robbery  was."  This  construction  was 
never  adopted  in  New  York.*^  In  that  State  the  words 
thieves,  or  theft,  are  interpreted  by  the  Court  according  to 
their  ordinary  meaning.  But  in  Tennessee  it  is  held 
othenvise  and  the  English  rule  is  adopted.'^ 

The  exception  of  "  loss  by  robbers  "  does  not  apply  to 

^  Byles,  J.,  in  Russell  v.  Niemann,  17  Coram.  B.  (N.  S.)  175  (1864);  3 
Kent.  Comm.  216;  McArthur  v.  Sears,  21  Wend.  190  (1839). 
"^  Holladay  v.  Kennard,  12  Wall.  254  (1870). 

3  Rothschild  v.  Royal  Mail  S.  S.  Co.,  7  Excheq.  734  (1852). 

4  Taylor  z;.  Liverpool  S.  S.  Co.,  L.  R.  9  Q.  B.  546  (1874).  The 
Court  said  the  word  was  ambiguous  and  must  be  interpreted  in  favor  of 
the  shipper. 

s  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880). 
^  Am.  Ins.  Co.  &.  Bryan,  26  Wend.   563   (1841);   aff'g  s.  c    i  Hill. 
25  (1841);  Atlantic  Ins.  Co.  v.  Storrow,  5  Paige,  285  (1835). 
''  Marshall  v.  Ins.  Co.,  i  Humph.  (Tenn.)  99  (1839). 


ACTS   MASTER   AND   MARINERS.  319 

the  case  of  a  loss  which  would  not  have  happened  but 
for  the  negligence  of  the  master.' 

SECTION   V. 

LOSS   FROM   ACTS   OF   MASTER   AND    MARINERS. 

The  general  question  of  the  validity  of  contracts  be- 
tween the  carrier  and  the  shipper,  purporting  to  exempt 
the  former  from  liability  for  the  negligence  of  his  ser- 
vants, has  been  fully  considered  in  Chapter  IV.  It  has 
there  been  shown  that  in  the  Federal  Courts  and  in  many 
of  the  State  Courts,  such  contracts  are  held  to  be  invalid. 
It  was  for  a  time  contended  that  the  decisions  there  cited 
were  applicable  only  to  contracts  for  transportation  by  land, 
or  at  most  upon  inland  waters,  and  not  to  contracts  for 
transportation  upon  the  high  seas.  But  in  the  Federal 
Courts  it  is  now  settled  that  no  such  distinction  exists,  and 
that  clauses  in  marine  bills  of  lading,  purporting  to  ex- 
empt the  carrier  from  liability  for  negligence  of  its  ser- 
vants, are  as  much  against  public  policy  and  void  as  like 
clauses  contained  in  contracts  for  transportation  by  land.^ 

The  Montana  was  argued  not  only  by  counsel  for  the 
immediate  parties  to  the  record,  but  by  counsel  represent- 
ing other  parties  interested  in  the  question,  and  it  hardly 
seems  appropriate  to  repeat  here  the  various  arguments 
used  and  authorities  cited  on  one  side  or  the  other  of  the 
case.  But  it  will  be  observed  that  this  case,  like  the  other 
Federal  decisions  cited  in  Chapter  IV,  section  2,  relate 
only  to  clauses  limiting  liability  for  negligence,  and  not 

1  The  Saratoga,  20  Fed.  Rep.  869  (1884);  Tarbell  v.  Royal  Ex- 
change Shipping  Co.,  no  N.  Y.  170  (1888). 

^  The  Montana;  Phenix  Ins.  Co.  v.  Liverpool  &  G.  W.  S.  S.  Co.,  129 
U.  S.  (1889);  aff'g  22  Blatch.  393  (1884);  s.c.  22  Fed.  Rep.  715  (1884); 
aff'g  s.c  17  Ibid,  377  (1883);  The  Saratoga,  20  Fed.  Rep.  869  (1884); 
The  Brantford  City,  29  Fed.  Rep.  373  (1887);  The  Powhattan,  5  Fed. 
Rep.  375  (1880);  rev'd  on  another  point,  12  Fed.  Rep.  880  (1882). 


320  THE    MODERN    LAW    OF    CARRIERS. 

to  those  limiting  the  carrier's  liability  for  wilful  torts. 
The  technical  expression  for  such  torts,  when  committed 
at  sea  or  on  shipboard,  is  "  barratry  of  master  or  mari- 
ners." It  has  been  held  in  the  State  of  New  York  that  a 
clause  in  a  bill  of  lading  that  the  carrier  shall  not  be  lia- 
ble for  barratry  of  master  or  mariners  is  valid.^ 

This  clause,  so  far  as  we  have  been  able  to  discover, 
has  never  come  up  for  adjudication  in  the  Federal  Courts.^ 
It  is  a  very  old  one  in  bills  of  lading,  and  it  would  cer- 
tainly be  surprising  if  those  courts  in  a  proper  case  should 
refuse  to  sustain  its  validity.  It  does  not  necessarily  fol- 
low that  the  rule  laid  down  by  those  courts  as  to  the  va- 
lidity of  the  clause,  exonerating  the  carrier  from  liability 
for  the  negligence  of  its  servants,  would  be  applied  to  a 
case  where  the  liabilitj^  sought  to  be  established  was  one 
for  their  wilful  tort.  The  principal  is  not  liable  in  an  ac- 
tion of  tort  for  the  unfaithful,  malicious,  or  wilful  act  of 
the  agent,  not  committed  in  the  course  of  his  employ- 
ment.^ 

^  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880);  rev'g  s.  c.  14 
Hun,  100  (1878). 

^  Under  a  charter  party  having  a  covenant  to  keep  the  ship  well 
manned,  desertion  of  the  crew  is  not  a  "  peril  of  the  sea,"  but  barratry, 
and  the  ship  is  liable.  But  (p.  160)  it  is  said  "  this  risk  it  is  competent 
for  the  owner  to  provide  against  in  his  contract."  The  Ethel,  5  Bene- 
dict, 161  (1871).  When  the  vessel  is  chartered  for  a  lump  sum,  the 
owners  are  not  responsible  for  the  barratry  of  the  master  appointed  by 
them.  Hart  z'.  Leach,  21  Fed.  Rep.  77  (1884).  See  The  Alknomac, 
Bee,  124  (1798). 

Where  the  captain  being  sick,  shipped  a  man  as  nurse  or  attendant, 
with  a  promise  to  land  him  at  a  port  where  he  did  not  intend  to  go, 
held,  that  if  the  original  taking  had  been  tortious,  the  ship  would  not 
be  liable.  "There  is  no  proof  that  the  captain  was  authorized  to  obtain 
negroes  by  hiring,  force  or  strategy,  and  bring  them  to  this  country."  If 
the  man  were  a  seaman  or  a  passenger,  the  owners  would  be  liable  on 
their  contract.     Sunday  v.  Gordon,  Blatch.  &  H.  569  (1837). 

3  Isaacs  z^.  Third  Ave.  R.  R.,  47  N.  Y.  122  (1871);  Vanderbilt  v. 
Richmond  Turnpike  Co.,  2  N.  Y.  479  (1849).  In  the  Vanderbilt  case 
the  ship-owner  was  held  not  liable  for  damages  caused  by  his  captain 
wilfully  and  maliciously  running  into  another  ship.  In  Ralston  v.  The 
State-Rights,  Crabbe,  22  (1836),  it  was  held   that  under  such   circum- 


ACTS    MASTER   AND   MARINERS.  321 

To  examine  critically  tlie  numerous  authorities  upon 
this  subject  is  not  within  the  scope  of  this  present  trea- 

stances  the  ship  was  liable.  And  in  The  Anna  Maria,  2  Wheat.  334 
(181 7),  the  ship  was  held  liable  for  the  unlawful  conduct  of  the  captain 
as  a  privateer,  whereby  he  "  converted  the  whole  transaction  into  a  wan- 
ton marine  trespass."  But  in  these  and  many  similar  ones  in  admiralty, 
the  ship  is  treated  as  itself  the  wrong-doer.  The  Tabor,  2  Bened.  331 
(1868).  They  do  not  necessarily  determine  that  the  owner  is  also  liable 
in  personam.  In  Diaz  v.  The  Revenge,  3  Wash.  C.  C  262  (181 4),  it 
was  held  that  the  owners  were  not  personally  liable  for  the  wrongful 
act  of  their  captain,  amounting  to  piracy.  In  Fraser  v.  Freeman,  43  N. 
Y.  566  (187 1),  defendant  with  two  servants  was  endeavoring  to  enter 
upon  the  premises  of  another  under  a  claim  of  right,  and  one  of  the  de- 
fendant's servants  killed  the  plaintiff's  intestate  who  was  resisting  them. 
There  was  no  evidence  that  the  shot  was  fired  by  the  express  direction 
or  assent  of  the  defendant,  and  it  was  held  that  he  was  not  liable.  At 
page  569,  the  court  quote  with  approval  the  language  of  Judge  Cowen 
in  Wright  v.  Wilcox,  19  Wend.  343  (1838).  It  is  true  that  these  cases 
have  been  very  much  limited  by  more  recent  decisions  in  the  same 
court.  Jackson  v.  Second  Ave.  R.  R.,  47  N.  Y.  275  (1872);  7  Am.  Rep. 
448;  Schultz  V.  Third  Ave.  R.  R.,  89  N.  Y.  242  (1882);  Dayj/.  Brooklyn 
City  R.  R,  12  Hun,  435  (1877);  aff'd  76  N.  Y.  593  (1879);  Hoffman 
V.  N.  Y.  C.  &  H.  R.  R.,  87  N.  Y.  25  (1881). 

But  the  principle  stated  in  the  text  is  not  impaired  by  the  latter  de- 
cisions. In  Stewart  v.  Brooklyn  &  Cross  Town  R.  R.,  90  N.  Y.  588 
(1882),  the  distinction  is  well  stated.  At  page  594,  the  court  say  (re- 
ferring to  the  Isaacs  case):  "  That  case  was  discussed  by  counsel  and 
determined  by  this  Court  upon  the  assumption  that  the  rule  of  the  mas- 
ter's liability  for  the  assault  of  a  servant  committed  upon  a  person  to 
whom  the  master  owed  no  duty,  was  applicable  to  that  case.  The  mind 
of  the  Court  was  not  directed  to  the  fact  that  the  rule  applicable  to  such 
a  case  does  not  apply  to  the  case  of  an  assault,  committed  upon  a  pas- 
senger by  a  servant  intrusted  with  the  execution  of  a  contract  of  a  com- 
mon carrier." 

In  Rounds  v.  Del.,  Lack.  &  W.  R.  R.,  64  N.  Y.  129,  136  (1876),  the 
rule  as  to  the  liability  of  a  principal  for  the  torts  of  his  agents  is  thus 
stated  by  the  Court : 

"  It  seems  to  be  clear  enough  from  the  cases  in  this  State  that  the 
act  of  the  servant,  causing  actionable  injury  to  a  third  person,  does  not 
subject  the  master  to  civil  responsibility  in  all  cases,  where  it  appears 
that  the  servant  was  at  the  time  in  the  use  of  his  master's  property,  or 
because  the  act,  in  some  general  sense,  was  done  while  he  was  doing  his 
master's  business,  irrespective  of  the  real  nature  and  motive  of  the 
transaction.  On  the  other  hand,  the  master  is  not  exempt  from  respon- 
sibility in  all  cases  on  showing  that  the  servant,  without  express  author- 
ity, designed  to  do  the  act  or  the  injury  complained  of.  If  he  is 
authorized  to  use  force  against  another  when  necessary  in  executing  his 
master's  orders,  the  master  commits  it  to  him  to  decide  what  degree  of 
force  he  shall  use  ;  and  if,  through  misjudgment  or  violence  of  temper, 

21 


322  THE   MODERN   LAW   OF   CARRIERS. 

tise.  So  long,  however,  as  there  are  cases  of  wilful  tort 
on  the  part  of  the  agent  for  which  the  principal  is  not  lia- 
ble to  third  parties,  and  which,  if  committed  by  a  mariner 
would  certainly  amount  to  barratry,  so  long  will  it  be  open 
to  consideration  whether  the  carrier  may  not  by  contract  ex- 
empt himself  from  liability  as  carrier  for  acts,  for  which 
as  principal,  he  is  not  liable  at  common  law. 

In  this  connection  it  is  material  to  consider : 

First.  What  is  barratry  ? 

Second.  Who  can  be  considered  as  mariners  ? 

First.  Chancellor  Kent  says  (3  Comm.  305):  "  Bar- 
ratry is  a  fraudulent  breach  of  duty  on  the  part  of  the 
master  in  his  character  of  master,  or  of  the  mariners,  to 
the  injury  of  the  owner  of  the  ship  or  cargo,  and  without 
his  consent,  and  it  includes  every  breach  of  trust  com- 
mitted with  dishonest  views."  * 

he  goes  beyond  the  necessity  of  the  occasion,  and  gives  a  right  of  action 
to  another,  he  cannot,  as  to  third  persons,  be  said  to  have  been  acting 
without  the  line  of  his  duty  or  to  have  departed  from  his  master's  busi- 
ness- If,  however,  the  servant,  under  guise  and  cover  of  executing  his 
master's  orders,  and  exercising  the  authority  conferred  upon  him,  wil- 
fully and  designedly,  for  the  purpose  of  accomplishing  his  own  indepen- 
dent, malicious  or  wicked  purposes,  does  an  injury  to  another,  then  the 
master  is  not  liable. 

"The  relation  of  master  and  servant,  as  to  that  transaction,  does  not  ex- 
ist between  them.  It  is  a  wilful  and  wanton  wrong  and  trespass,  for  which 
the  master  cannot  be  held  responsible.  And  when  it  is  said  that  the 
master  is  not  responsible  for  the  wilful  wrong  of  the  servant,  the  lan- 
guage is  to  be  understood  as  referring  to  an  act  of  positive  and  designed 
injury,  not  done  with  a  view  to  the  master's  service  or  for  the  purpose 
of  executing  his  orders." 

The  English  cases  on  this  subject  are  very  fully  collected  in  Smith's 
Master  and  Servant,  322-360.  The  American  cases  are  collected  in  2 
Kent.  Com.  259,  260,  and  notes;  i  Parson's  Marit.  Law,  391,  394,  and 
in  Story  on  Agency,  sections  318,  456,  461.  One  of  the  most  recent  is 
Hershey  v.  O'Neill,  36  Fed.  Rep.  168  (1888).  The  general  rule  is  clear 
that  the  master  is  liable  for  a  tort  committed  by  a  servant,  only  when  the 
act  committed  is  within  the  scope  of  the  servant's  employment.  The  dif- 
ficulty has  been  to  determine  in  what  cases  the  act  can  be  said  to  be 
within  the  scope  of  the  employment.  There  is  a  distinction  between 
cases  in  which  the  action  is  against  the  owner  upon  his  contract,  and 
those  in  which  he  is  sued  in  tort.  Pendleton  v.  Kinsley,  3  Clifif,  416 
(1871);  McGuire  v.  The  Golden  Gate,  i  McAlister,  104  (1856). 

^Boehm  v.  Combe,  2  Maule  &   Sel.  172  (1813),  was  an  action  on   a 


ACTS   MASTER   AND   MARINERS.  323 

Second.  All  persons  who  form  a  part  of  the  ship's  com- 
pany are  mariners,  whether  sailors  or  not.^ 

policy  of  insurance  on  specie,  to  be  transported  by  land  to  Harwich 
and  thence  by  sea  to  Gottenburg.  The  specie  was  stolen  by  the  wagon- 
er's servants.  It  was  held  that  "  the  word  barratry  was  large  enough  to 
include  every  species  of  fraud  or  mains  dolus  committed  by  the  wagoner 
or  servants,  taking  them  to  stand  in  place  of  the  master  or  mariners." 
In  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880),  it  was  held  that  theft 
by  the  purser  was  barratry. 

"  No  act  of  the  master  of  a  vessel  can  be  deemed  barratry  unless  it 
proceed  from  a  criminal  or  fraudulent  motive."  Atkinson  v.  Great 
Western  Ins.  Co.,  65  N.  Y.  531  (1875);  ''^v'g  4  Daly,  i  (1871);  Lawton 
V.  Sun  Mutual  Ins.  Co.,  2  Cush.  (Mass.)  500  (1848);  Patapsco  Ins.  Co. 
V.  Coulters,  3  Pet,  222  (1830);  Wilson  v.  Rankin,  L.  R.  i  Qu.  B.  162 
(1865). 

^  Woolverton  v.  Lacey,  8  Monthly  Law  Rep.  672  (1856).  Conkling 
(Admiralty  Practice,  Vol.  i,  p.  108,  note  b)  says:  "In  the  District 
Court  of  the  Northern  District  of  New  York,  '  porters,'  whose  chief 
business  it  is  on  board  of  lake  steamers,  employed  in  the  conveyance  of 
passengers,  to  receive,  and  bring  on  board  and  discharge  the  luggage  of 
the  passengers,  have  been  allowed  to  sue  as  mariners,  their  services  be- 
ing essential  to  the  proper  and  successful  navigation  of  the  vessel  as  a 
passenger  vessel,  and  for  the  same  reason  this  privilege  has  been  allowed 
to  the  clerks." 

In  The  Jane  and  Matilda,  i  Hagg.  Adm.  187  (1823),  Ld.  Stowell 
held  that  a  woman  who  acted  as  cook  and  steward,  and  afterwards  as 
ship-keeper,  was  a  mariner  and  could  libel  the  ship  for  her  wages. 
"  The  other  capacity  in  which  she  served  is  that  of  ship  keeper  for  a 
long  space  of  time,  in  which  the  vessel  remained  in  dock  or  harbor, 
during  all  which  time  she  had  the  business  of  keeping  the  ship  clean  by 
frequent  washing,  and  of  looking  to  the  safe  custody  of  the  stores  left 
on  board,"  p.  190. 

In  Smith  z/.  The  Sloop  Pekin,  Gilpin,  203  (1834),  Judge  Hopkinson  held 
that  the  steward  of  a  sloop  was  a  mariner.  In  Wilson  v.  The  Ohio,  Gil- 
pin 505,  (1834),  Judge  Hopkinson  refers  to  this  case  of  The  Pekin,  and 
says  the  steward  had  in  strictness  nothing  to  do  with  navigating  the 
ship. 

So  Bouvier,  in  his  Law  Diet.,  Vol.  2,  p.  103  (15  Ed.),  sub  voce  Mari- 
ner :  "  Surgeons,  engineers,  clerks,  stewards,  cooks,  porters  and  cham- 
bermaids on  passenger  steamers,  when  necessary  for  the  service  of  the 
ship  or  crew,  are  also  deemed  mariners,  and  permitted  as  such  to  sue  in 
the  admiralty  for  their  wages."     Abb.  Law  Diet.,  Vol.  2,  p.  83,  S.  P. 

In  Spinetti  v.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880);  rev'g  s.  c.  14 
Hun,  100  (1878),  it  was  held  that  the  purser  was  a  mariner. 

Under  the  Statute  of  Nuncupative  Wills,  a  purser  is  held  to  be  "  a 
mariner."  Hubbard  z*.  Hubbard,  8  N.  Y.  196(1853);  The  goods  of 
Hayes,  2  Curteis,  338  (1839);  Ex  parte  Thompson,  4  Bradf.  154,  159 
(1856).  See,  also,  U.  S.  Rev.  Stat.  sees.  4,573,  4)574,  4'575i  4,612.  The 
duties  of  this  officer  in  earlier  days  were  discharged  by  the  captain. 


324  THE   MODERN   LAW   OF   CARRIERS. 

The  words  "  Any  act,  negligence  or  default  of  the 
pilot,  master,  mariners,  engineers,  servants  or  agents  of 
the  company,"  are  broad  enough  to  cover  the  theft  of  a  bag 
of  gold  by  the  purser,  to  whom  all  specie  is  entrusted  by 
the  carrier.^ 

If  the  clause  purport  to  exempt  the  carrier  from  lia- 
bility for  any  fault  of  the  officers  or  crew  "  in  the  man- 
agement of  the  ship,"  it  will  be  interpreted  to  mean  "  in 
the  management  of  the  ship  while  the  goods  are  on 
board."  It  will  not  cover  the  case  of  neglect  so  to  prepare 
the  ship  that  it  should  be  in  suitable  condition  for  the 
transportation  of  the  freight  in  question.^ 

SECTION    VI. 

DANGER    OF  FIRE. 

Loss  by  fire  was  one  of  the  first  risks  which  carriers 
sought  to  exempt  by  a  special  clause  in  the  bill  of  lading. 
It  was  settled  long  ago  that  in  the  absence  of  such  a 
clause  the  carrier  was  liable  for  loss  by  fire,  unless  that 
fire  was  caused  by  lightning,  although  no  negligence  on 
his  part  concurred,  and  the  fire  was  communicated  to  his 
vessel  from  burning  buildings  or  other  extrinsic  sources.^ 

The  clause  by  which  it  is  agreed  that  the  carrier  shall 
not  be  liable  for  loss  by  fire  is  valid  if  the  loss  is  not 
occasioned  by  his  negligence.* 

McLachlan  on  Shipping,    146,   148.     The  Gratitudine,  3  C  Rob.  240, 
257  (1801). 

1  Spinettiz^.  Atlas  S.  S.  Co.,  80  N.  Y.  71  (1880). 

2  Stevens  v.  Navigazione  Gen.  It.,  39  Fed.  Rep.  562  (1889). 

3  Providence  &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578,  602 
(1883);  Lakeman  f^.  Grinnell,  5  Bosw.  (N.  Y.)  625  (1859);  Patton  v. 
Magrath,  Dudley  (S.  C),  150  (1839);  Hibler  v.  McCartney, 31  Ala.  501 
(1858).     See,  also,  cases  cited  in  Chap.  XIV,  sect.  3,  ajite^  p.  302. 

4  York  Co.  V.  Central  R.  R.,  3  Wall.  107  (1865);  The  Egypt,  25 
Fed.  Rep.  320  (1885).  In  this  case  the  goods  were  discharged  from  the 
ship  at  night  under  a  permit  from  the  Collector,  upon  the  delivery  to 


DANGER   OF   FIRE.  325 

In  some  cases  where  the  bill  of  lading  contained  an 
agreement  to  transport  the  goods  partly  by  water  and 
partly  by  rail,  it  has  been  held  that  the  clause  exempting 
the  carrier  from  liability  for  damage  by  fire  related  to  the 
water  transportation  only.^  But  these  cases  can  only  be 
upheld  in  view  of  the  special  language  of  the  particular 
bill  of  lading.  The  exemption  from  liability  for  loss  by 
fire  is  generally  construed  to  apply  throughout  the  entire 
transit,  from  the  time  of  delivery  to  the  carrier  to  that  of 
delivery  to  the  consignee.^ 

The  words  "dangers  of  fire  and  navigation  only  ex- 
cepted," and  "  unavoidable  accidents  of  navigation  and  fire 
excepted,"  mean  substantially  the  same  thing,  and  apply 
to  and  include  loss  by  any  fire,  whether  originating  on 
the  boat  or  not.^ 

In  a  case  where  the  carrier,  the  owner  of  a  steamboat 

him  of  a  bond  to  pay  for  goods  "stolen,  burned,  or  otherwise  lost"  on" 
the  wharf.  The  goods  were  destroyed  by  fire,  and  it  was  held  that 
this  bond  did  not  extend  the  liability  of  the  carrier,  and  that  conse- 
quently the  carrier  was  not  liable,  as  the  bill  of  lading  exempted 
it  from  liability  for  loss  "  by  fire  before  unloading,  in  the  ship,  or 
after  unloading."  In  Hall  v.  Penn.  R.  R.,  14  Phila.  414  (1880),  the 
contract  provided  that  the  carrier  should  not  be  liable  "  for  loss  or  dam- 
age by  fire  or  other  casualty  while  in  transit,  or  while  in  depots  or 
places  of  transportation."  The  goods  were  delayed  at  Pittsburgh, 
while  in  transit,  owing  to  a  strike,  and  were  there  burned  in  a  fire, 
which  was  begun  by  a  mob.  It  was  held  that  the  carrier  was  not  liable. 
'  Barter  v.  Wheeler,  49  N.  H.  9  (1869).  The  language  of  the  bill  of 
lading  was,  "  the  dangers  of  navigation,  fire  and  collision  on  the  lakes 
and  rivers."  Little  Rock,  Miss.  R.  &  T.  R.  R.  v.  Talbot,  39  Ark.  523 
(1882).  is  a  similar  case,  decided  on  the  ground  that  the  words  which  fol- 
lowed the  exemption  limited  it  to  water  risks.  These  words  were  "  as  the 
R.  &  D.  and  connecting  railroads  assume  no  marine  risks  whatever."  It 
was  also  held  that  a  fire  occurring  on  a  wharf  boat  moored  at  her  dock, 
which  was  used  as  the  receiving  depot  for  freight,  was  not  a  marine 
risk.     See  ante,  Chap.  X,  sect.  3,  p.  238. 

2  Scott  V.  Baltimore  S.  S.  Co.,  19  Fed.  Rep.  56  (1884);  The  Egypt, 
25  Fed.  Rep.  320  (1885);  Little  Miami  R.  R.  v.  Wetmore,  19  Ohio,  no 
(1869);  Crocker  v.  The  New  London,  Willimantic  and  Palmer  R.  R.,  24 
Conn.  249  (1855);  Button  v.  The  London  &  South  Western  Railway 
Company,  L.  R.  2  Q.  B  535  (1867). 

3  Swindler  v.  Hilliard,  2  Rich.  (S.  C.)  286  (1846). 


326  THE   MODERN   LAW   OF   CARRIERS. 

on  a  Southern  river,  sought  to  relieve  himself  from  lia- 
bility for  the  destruction  by  fire  of  cotton  on  his  boat,  by 
proving  the  custom  of  the  business,  it  was  held  that  to 
have  this  effect  the  usage  must  be  well  known,  established 
and  recognized.  It  was  also  said  by  the  Court  that  the 
carrier  might  exempt  himself  from  liability  for  loss  by 
fire,  by  showing  that  he  had  given  notice  that  he  would 
not  be  liable  for  injury  to  cotton  by  fire,  unless  a  higher 
rate  of  freight  were  paid,  provided  this  notice  was  given  to 
the  shipper  under  such  circumstances  that  it  might  fairly 
be  held  to  enter  into  and  form  part  of  his  contract.^ 

Exemption  from  liability  for  loss  by  fire  does  not 
change  the  right  of  the  parties  as  to  the  payment  of 
freight.  The  carrier  cannot  recover  freight  for  goods 
destroyed  by  fire  before  they  are  delivered  to  the  con- 
signee, although  under  the  terms  of  the  bill  of  lading  he 
is  not  liable  for  their  loss.^ 


SECTION    VII. 

LEAKAGE,  BREAKAGE,  SWEATING,   RUST,   SHRINKAGE,   AND   SIML 
LAR  EXCEPTIONS  IN  THE  BILL  OF  LADING. 

Aside  from  the  general  exceptions  in  bills  of  lading 
already  considered,  there  are  others,  such  as  those  speci- 
fied at  the  head  of  this  section,  which  are  commonly  in- 
serted, especially  in  marine  bills  of  lading.  In  general 
they  are  founded  on  some  peculiar  characteristic  of  the 

^  Singleton  z^.  Hilliard,  i  Strobh.  (S.  C.)  203  (1847).  This  case  is 
referred  to  here  because  the  Court  seem  to  place  the  decision  on  the 
character  of  the  particular  risk  from  which  exemption  is  sought.  But 
it  is  opposed  to  the  current  of  decisions  cited  under  Chap.  X,  and  can 
hardly  be  considered  as  authority  outside  the  limits  of  the  jurisdiction 
in  which  it  was  decided.  Patton  v.  McGrath,  Dudley  (S.  C),  162 
(1838),  and  Swindler  v.  Hilliard,  2  Rich.  Law  (S.  C),  286  (1846),  refer 
to  the  same  custom. 

2  N.  Y.  &  H.  R.  R.  V.  Standard  Oil  Co.,  87  N.  Y.  486  (1882);  aff'g 
s.  c.  20  Hun,  39  (1880). 


LEAKAGE,    BREAKAGE,   ETC.  327 

various  articles  mentioned  in  the  bill  of  lading,  which 
render  probable  the  occurrence  of  the  specified  dangers. 
These  are  valid  exceptions  to  the  carrier's  liability,  unless 
the  injury  is  brought  about  by  the  carrier's  negligence,  or 
that  of  his  servants.^ 

If,  however,  the  negligence  of  the  carrier  or  his  ser- 
vants or  agents  contribute  to  produce  the  injury,  the  ex- 
ception will  not  protect  the  carrier.^ 

The  effect  of  such  exemptions  is  to  change  the  burden 
of  proof  as  to  negligence,  so  that  M^hen  the  carrier  has 
proved  that  the  loss  was  within  the  excepted  peril  he  need 
offer  no  further  evidence,  but  the  shipper  must  prove 
negligence.^ 

^  The  Keystone,  31  Fed.  Rep.  412  (1886);  Wolff  v.  The  Vaderland, 
18  Fed.  Rep.  739  (1883);  The  Pereire,  8  Bened.  302  (1853);  The  Delhi, 
4  Bened.  345  (1870);  The  Jefferson,  31  Fed.  Rep.  489  (1887);  Mendel- 
sohn V.  The  Louisiana,  3  Woods  Ct.  Ct.  46  (1877). 

""  The  Keystone,  31  Fed.  Rep.  412  (1886);  Wolff  v.  The  Vaderland, 
18  Fed.  Rep.  739  (1883);  The  David  and  Caroline,  5  Blatchf.  266 
(1865);  Dedekam  v.  Vose,  3  Blatch.  44  (1853);  The  Giglio  v.  The 
Britannia,  31  Fed.  Rep.  432  (1887);  The  Colon,  9  Bened.  355  (1878); 
The  Invincible,  3  Sawy.  176  (1874);  Reno  v.  Hogan,  12  B.  Monroe 
(Ky.),  63  (1851);  Koenigsheim  v.  Hamburg  Am.  P.  Co.,  12  Daly  (N. 
Y.),  123  (1883).  A  stipulation  that  machinery  might  be  carried  in  open 
cars,  the  owner  assuming  risks  of  weather  and  rust,  will  not  protect  the 
carrier  from  damages  for  his  negligence  in  omitting  to  cover  the  goods 
during  an  unnecessary  delay  of  two  days.  Western  &  A.  R.  Co.  v.  Ex- 
position Cotton  Mills,  7  S.  E.  Rep.  917  (1888). 

The  same  rule  has  been  applied  in  cases  where  leakage  or  sweating 
were  not  specifically  excepted,  but  did  occur  during  bad  weather,  and 
were  claimed  to  constitute  a  peril  of  the  sea  for  which  the  carrier  was 
not  liable.  Thus,  in  The  Star  of  Hope,  17  Wall.  651  (1873),  the  Court 
say:  "The  defense  is  to  the  effect  that  sweating  is  one  of  the  dangers 
of  the  seas.  But  if  the  sweating  be  produced  in  consequence  of  negli- 
gent stowage,  the  claimant  is  precluded  from  setting  up  the  defense." 

So,  in  The  Antoinetta,  5  Bened.  564  (1872),  Blatchford,  J.,  said:  "I 
cannot  regard  it  as  a  peril  of  the  seas  to  stow  casks  of  bleaching  powder 
in  such  relations  to  bales  of  grain  bags  that  the  casks,  being  against  the 
skin  of  the  ship,  may  become  wet  and  destroy  the  wood  of  the  casks  so 
that  by  rolling  of  the  vessel  the  casks  will  be  stove  and  discharge  their 
contents,  so  as  to  reach  and  injure  the  bags.  The  loss  is  not  shown  to 
be  one  which  ordinary  skill  and  prudence  could  not  avoid  "  See  The 
Nith,  36  Fed.  Rep.  86  (1888). 

'  Where  the  exception  in  the  bill  of  lading  was  of  "  average  leakage 


328  THE    MODERN   LAW   OF   CARRIERS. 

Where,  however,  the  bill  of  lading  contains  a  clause 
that  the  exceptions  shall  not  apply  "  unless  the  goods  are 
properly  stowed,"  the  burden  is  on  the  carrier  to  show 
good  stowage.  When,  as  is  usually  the  case,  it  is  the 
duty  of  the  carrier  to  stow  properly,  his  failure  to  do  so  is, 
of  course,  negligence,  which,  without  such  a  clause,  it 
would  be  the  duty  of  the  shipper  to  prove.^ 

Where  a  leakage  had  been  caused  by  the  working  out 
of  a  defective  plug  from  the  cask,  the  Court  held  that  this 
was  a  latent  defect,  and  the  carrier  was  not  liable,  although 
the  bill  of  lading  receipted  for  the  cask  in  good  order. 
But  if  the  working  out  of  the  plug  had  been  caused  by 
excessive  motion  of  the  cask,  the  shipper  could  show  that 
this  was  due  to  bad  stowage.^ 

In  examining  the  cases  cited  in  the  note  to  the  pre- 
vious paragraphs,  it  must  be  remembered  that  clauses  ex- 
empting carriers  from  liability  for  negligence  are  held  by 
many  Courts  to  be  void,  as  shown  in  Chap.  IV,  sect.  2. 
These  Courts,  in  construing  bills  of  lading,  practically 

and  breakage,"  and  the  carrier  showed  that  the  casks  were  of  inferior 
quality,  it  was  held  that  the  burden  was  on  the  shipper  to  show  negli- 
gence. Six  Hundred  and  Thirty  Casks  of  Sherry  Wine,  14  Blatch. 
518(1878). 

It  was,  however,  said  in  Alabama  that  in  order  to  bring  the  case 
within  the  exception  (breakage)  it  must  be  proved  that  it  was  breakage 
without  negligence.  The  Court  says  that  it  does  not  adopt  the  rule 
that  the  burden  is  on  the  carrier  to  show  no  negligence.  But  it  is  diffi 
cult  to  see  the  distinction.  Steele  v.  Burgess,  i  Ala.  Sal.  Cases,  207 
(1861);  s.  c.  37  Ala.  K.  247. 

In  Brauer  v.  The  Almoner,  18  La  Ann.  266  (1866),  it  seems  also  to 
be  held  that  the  carrier  must  prove  some  unusual  weather  to  account 
for  certain  breakage.  Where  the  bill  of  lading  exempts  leakage,  this 
does  not  cover  leakage  caused  by  bad  stowage.  But  the  burden  is  on 
the  libellant  to  show  that  the  stowage  was  defective.  The  Britannia, 
34  Fed.  906  (1888).  See  notes  i  and  2,  a7i^.e,  p.  327,  and  Chap.  XI, 
sect.  2,  ante,  p.  245,  n.  4. 

1  Edwards  v.  The  Cahawba,  14  La.  Ann.  224  (1859).  The  question 
of  the  burden  of  proof  is  well  illustrated  in  Nelson  v.  The  Nat.  Steam- 
ship Co.,  7  Bened.  340  (1874),  where  adjudication  was  made  upon 
losses  under  seven  different  shipments  on  different  proofs  as  to  each. 

2  The  Olbers,  3  Bened.  148  (1869). 


LEAKAGE,   BREAKAGE,    ETC.  329 

Strike  out  such  clauses  and  construe  the  contract  as  if  no 
such  clause  had  been  inserted.^ 

A  loss  from  stowage  is  not  necessarily  a  loss  from 
negligence.  The  placing  of  particular  goods  in  a  certain 
place  may  be  necessary  in  order  to  load  the  ship  suitably 
for  her  intended  voyage.  In  other  words,  where  "  loss 
from  stowage"  is  excepted,  the  carrier  ceases  to  be  an 
insurer  against  loss  arising  from  that  cause.  But  if  due 
care  be  not  used  in  and  about  the  stowage  of  the  cargo, 
the  carrier  is  liable  for  the  consequences.^ 

What  will  or  will  not  constitute  negligent  stowage  is 
generally  a  question  of  fact.  Evidence  of  the  customary 
mode  of  stowage  is  admissible  as  bearing  directly  upon 
the  determination  of  this  question.^ 

But  the  custom  must  be  general  and  not  confined  to 
the  particular  carrier.  Although  if  the  latter  has  a  cus- 
tom as  to  stowage  known  to  the  shipper,  and  in  view  of 
which  the  contract  is  made,  this  will  suffice.  But  if  the 
experience  of  the  trade  has  shown  that  the  old  method  of 
stowage  is  dangerous,  the  carrier  cannot  justify  himself 

^  The  Colon,  9  Bened.  355  (1878),  is  an  illustration. 

'  Nelson  v.  National  S.  S.  Co.,  7  Bened.  340  (1874).  In  this  case 
the  Court  adverted  to  the  fact  that  it  was  noted  in  the  margin  of  some 
of  the  bills  of  lading  that  the  casks  were  loose  when  shipped.  The  Court 
held  that  it  was  to  be  presumed  that  the  loss  of  plumbago  contained  in 
these  was  due  to  the  defective  condition  of  the  casks. 

^  Paturzo  V.  Compagnie  Francaise,  31  Fed.  Rep.  611  (1887);  The 
Chasca,  23  Fed.  Rep.  156  (1885);  The  Invincible,  i  Lowell,  225  (1868); 
Baxter  v.  Leland,  i  Abb.  Adm.  348  (1848).  This  was  a  case  of  injury 
to  the  cargo  by  "  sweating,"  as  was  also  The  Portuense,  35  Fed.  Rep. 
670  (1888).  Baxter  v.  Leland  and  The  Portuense  should  be  compared 
with  Mendelsohn  v.  The  Louisiana,  3  Woods  C.  C.  46  (1877).  Lamb  v. 
Parkman,  i  Sprague,  343  (1857),  supports  the  text.  It  is  there  held 
that  under  the  circumstances  (a  hot  climate)  sweating  is  included  in  the 
express  exception  of  "perils  of  the  seas,"  because  incident  to  the  partic- 
ular voyage. 

In  Rich  V.  Lambert,  12  How.  347-357  (1851),  the  Court  said  that 
"the  conveyance  of  salt  between  decks,  in  a  mixed  cargo, was  according 
to  the  established  usage  and  custom  of  the  trade  between  Liverpool 
and  this  country,"  and  it  was  held  that  there  was  "  no  fault  chargeable 
to  the  master  as  to  the  place  of  stowage."     Ati^e,  p.  245,  n.  4. 


2,2,0  THE   MODERN   LAW   OF   CARRIERS. 

for  following  it  and  is  liable  for  a  loss  from  sweating  pro- 
duced by  the  stowage,  although  loss  from  sweating  is  ex- 
cepted in  the  bill  of  lading.^ 

Leakage  ordinarily  means  leakage  from  the  cask  or 
other  enclosure  of  the  liquid  shipped,  and  not  leakage 
from  the  sea  into  the  ship ;  •^  and  where  this  word  is  used 
unqualified  by  any  adjective,  it  extends  to  the  loss  of  the 
entire  contents  of  the  cask.^  When  the  words  used  are 
"  ordinary  leakage,"  they  can  be  explained  by  parol  evi- 
dence, so  as  to  show  what  proportion  of  the  contents  must 
remain  in  order  to  constitute  "  ordinary  leakage."* 

"  Breakage  or  drainage  "  means  breaking  or  draining 
from  the  package  injured — not  from  others.^ 


SECTION  VIII. 

DELIVERY. 

Clauses  are  frequently  inserted  in  bills  of  lading,  for 
the  purpose  of  limiting  the  common  law  liability  of  the 
carrier  in  reference  to  the  delivery  of  the  goods.  The 
common  law  rule  was  that  the  liability  of  the  carrier 
should  continue,  not  only  until  the  goods  were  delivered 

^  Paturzo  V.  The  Compagnie  Francaise,  31   Fed.   Rep.  611   (1887). 

-  Hill  V.  Sturgeon,  28  Mo.  329  (1859).  In  this  case  the  words  used 
were  "  leaking  and  sinking."  It  was  held  that  they  did  not  cover  a  loss 
from  sinking  of  the  ship,  produced  by  a  leak,  caused  by  external  vio- 
lence. So  when  the  words  used  are  'leakage,  breakage  and  rust,"  it  is 
held  that  they  do  not  cover  an  injury  caused  by  leakage  from  other 
goods.     Thrift  v.  Youle,  2  C.  P.  Div.  434  (1877). 

3  The  Helene,  L.  R.  i  P.  C.  231  (1866).  But  in  Brauer  v.  The 
Almoner,  18  La.  Ann.  266  (1866),  it  was  held  otherwise.  The  Court 
there  say  that  such  an  exception  applies  only  to  "  ordinary  leakage." 
The  English  case  is  believed  to  be  better  law. 

*  The  Helene,  L.  R.  i  P.  C.  231  (1866).  In  this  case  it  was  shown 
that  a  loss  of  one  per  cent,  or  less  of  the  contents  of  the  cask  was  con- 
sidered in  the  trade  as  "  ordinary  leakage." 

'  The  Bitterne,  35  Fed.  Rep.  927  (1888). 


DELIVERY.  331 

at  the  pier  or  depot  of  the  carrier,  but  until  notice  of  their 
arrival  had  been  given  to  the  consignee  and  a  reasonable 
opportunity  afforded  him  to  take  them  away.^ 

*  This  is  the  rule  as  established  in  the  English  Courts,  in  the  Federal 
Courts,  and  in  the  courts  of  most  of  the  States.  3  Kent.  Com.  215;  2 
Kent.  605.  The  Eddy,  5  Wall.  494  (1866);  Richardson  v.  Goddard,  23 
How.  (U.  S.)  28  (1859);  The  Peytona,  2  Curtis,  C.  C.  21  (1854);  The 
Tangier,  i  Clifford,  396  (i860);  Bourne  v.  Gatliffe,  3  Mann.  &  Gr.  643 
(184O;  aff'd  7  lb.  868  (1844);  11  Clarke  &  Fin.  45  (1844);  Bourne  v. 
Gatliffe,  4  Bing.  New  Cases,  314  (1838);  Price  v.  Powell,  3  N.  Y.  322 
(1850);  McAndrew  v.  Whitlock,  52  N.  Y.  40  (1873);  Zinn  v.  N.J. 
Steamboat  Co.,  49  N.  Y.  442  (1.S72);  Sherman  v.  Hudson  R.  R.  R.,  64 
Jd.  254  (1876);  Faulkner  v.  Hart,  82  N.  Y.  413  (1880);  The  Steamboat 
"  Sultana "  z'.  Chapman,  5  Wis.  454  (1856);  Sleade  v.  Payne,  14  La. 
Ann.  453  (1859);  Chicago  &  Rock  Island  R.  R.  v.  Warren,  16  111.  502 
(1855).  In  this  case  the  court  say  :  ''  There  must  be  an  actual  or  con- 
structive delivery  to  the  owner  or  consignee,  or  to  a  warehouseman  for 
storage."  See  the  Illinois  cases  cited  at  the  end  of  this  note-  Moses  v. 
Boston  &  Me.  R.  R.,  32  N.  H.  523  (1856);  Redfield  on  Carriers,  sects, 
no,  in;  Story  on  Bailments,  sect.  545;  contra  sect.  446;  Graves  v. 
Hartford  &  N.  Y.  S.  Co.,  38  Conn.  143  (1871).  The  carrier  is  not  justi- 
fied in  abandoning  the  goods,  even  if  the  consignee  refuse  to  receive 
them.     Redmond  v  Liverpool  N.  Y.  &  P.  S.  Co.,  46  N.  Y.  583  (187 1). 

The  Massachusetts  rule  is,  however,  different.  According  to  this 
the  liability  of  the  carrier  as  such  terminated  immediately  upon  the  de- 
posit of  the  goods  on  the  pier  or  in  the  depot.  After  that  the  liability 
was  simply  that  of  a  warehouseman.  Rice  v.  Hart,  118  Mass.  201 
(1875);  Norway  Plains  Co.  v.  Boston  &  Me.  R.  R.,  i  Gray  (67  Mass.), 
263  (1854);  Sessions  v.  Western  R.  R.,  16  Gray  (82  Mass.),  132  (i860); 
Rice  V.  Boston  &  W.  R.  R.  R.,  98  Mass.  212  (1867);  Miller  v.  Mans- 
field, 112  Id.  260  (1873);  Stowe  V.  N.  Y.,  Boston  &  Prov.  R.  R.  113  Id. 
521  (1873). 

The  following  cases  hold  that  the  consignee  of  goods  shipped  by  rail 
must  be  on  hand  to  receive  thein  on  their  arrival,  and  is  not  entitled  to 
notice  : 

Illinois. — Porter  z'.  Chicago  &  R.  I.  R.  R.,  20  111.  407  (1858);  Chi- 
cago &  A.  R.  R.  V.  Scott,  42  111.  132  (1866);  Merch.  Despatch  Co.  v. 
Moore,  88  111.  136  (1878). 

Indiana- — Bansemer  v.  Toledo  &  W.  R.  Co.,  25  Ind.  435  (1865). 

Io7va. — Francis  v.  Dubuque  &  Sioux  City  R.  R.,  25  Iowa,  65 
(1868). 

Missouri. — Buddy  77.  Wabash,  St.  L.  &.  P.  R.  Co.,  20  Mo.  App.  206; 
2  West  Rep.  535  (1886). 

In  Jackson  v-  Sacramento  V.  R.  R.,  23  Cal.  269  (1863),  the  con- 
signee had  notice  of  the  arrival  of  the  goods,  but  the  Court  say  that 
safely  warehousing  them  completes  the  duty  of  the  carrier.  The  Su- 
preme Court  of  Pennsylvania,  deciding  on  the  law  of  New  York,  held 
that  the  carrier's  usage  and  the  course  of  trade  would  control,  and  that 
the  railroad  company  had  fully  performed  its  duty  as  carrier  when  it 


332         THE  MODERN  LAW  OF  CARRIERS. 

The  usual  form  of  the  stipulation  in  maritime  contracts 
on  this  subject  is  in  substance,  that  the  goods  should  be 

had  deposited  in  its  own  warehouse  the  goods  which  the  plaintiffs  were 
not  ready  to  receive.  McCarty  v.  N.  Y.  &  Erie  R.  R.,  30  Penn.  St. 
253(1858). 

In  New  Jersey  the  Court  said  that  the  liability  of  carriers  by  rail- 
road is  different  from  that  of  carriers  by  water,  and  that  it  continues 
until  the  consignee  has  had  a  reasonable  time  to  remove  the  goods,  but 
that  the  carrier  need  not  give  notice.  Morris  &  E.  R.  R.  ads.  Ayres, 
29  N.  J.  (Law),  394  (1862).  This  language  is  cited  by  Sharswood,  J., 
in  Shunk  v.  Phil.  Steam  Propeller  Co.,  60  Penn.  St.  114  (1869). 

The  Massachusetts  cases  cited  are  all  railroad  cases.  The  courts  of 
that  State  make  a  distinction,  based  on  usage,  between  railways  and 
other  carriers.  Norway  Plains  Co.  v-  Boston  &  Me.  R.  R.,  i  Gray,  263 
(1854);  and  it  is  quite  probable  that  there  is  a  difference  in  the  usage  of 
railway  companies  in  different  countries,  States  and  towns,  and  also  a 
difference  in  the  usage  of  water  carriers. 

In  a  railroad  case  an  English  court  held,  under  the  peculiar  lan- 
guage of  the  contract  for  the  shipment  of  a  horse,  that  the  shipper 
ought  to  have  notified  the  consignee,  and  that  the  carrier  was  not  liable, 
although  he  left  the  horse  uncared  for,  without  notice  to  the  consignee, 
for  twenty-four  hours.  Wise  v.  Great  Western  R.  Co.,  i  Hurlst.  &  N. 
64  (1856). 

Chicago  &  Rock  Id.  R.  R.  v.  Warren,  16  111.  502  (1855),  was  a  case 
of  gross  negligence  where  the  carrier  w^ould  have  been  liable  even  as 
warehouseman.  The  goods  (rags)  were  taken  by  carrier  done  up  in 
bags,  and  were  found  "  lying  loosely  outside  of  defendant's  depot  and 
out  of  the  bags,"  two-thirds  stolen  or  lost.  The  syllabus  says,  "  Carriers 
must  deliver  to  owner  or  consignee,  and  cannot  rid  themselves  of  liabil- 
ity until  the  goods  are  delivered  to  owner  or  consignee,  or  to  a  ware- 
houseman.''' The  opinion  says,  "  Responsibility  must  last  until  that  of 
some  other  begins,"  and  the  goods  were  stolen  *'  before  the  defendant 
could  reach  the  depot  to  receive  them,  after  notice."  The  right  to  no- 
tice not  discussed.  Despatch  Co.  v.  Moore,  88  111.  136,  was  a  case  of 
connecting  lines.  Goods  were  carried  to  terminus  of  first  carrier,  ar- 
rived late  in  evening,  were  warehoused,  "  and  on  the  following  morn- 
ing" destroyed  by  the  Chicago  fire.  Defendant  was  held  not  liable. 
Whether  there  was  notice  or  even  opportunity  to  tranship  does  not  ap- 
pear, and  was  not  considered;  but  there  could  hardly  have  been.  This 
fire  broke  out  at  night,  which  must  have  been  the  night  of  arrival.  The 
contract  to  carry  only  to  Chicago  was  proved. 

Chicago  R.  R.  v.  Scott,  42  111.  139  (1866),  says  expressly:  '''But  the 
rule  is  settled  that  no  notice  is  necessary,  and  if  the  consignee  is  not  pres- 
ent "  to  receive  the  goods,  carrier  can  warehouse  the  goods,  and  "  his 
liability  as  carrier  ceases  and  warehouseman  begins;"  citing  the  Mas- 
sachusetts cases.  But  these  cases  go  much  farther  than  this  and  hold 
the  carrier  discharged  from  his  liability  as  carrier  from  the  moment  that 
the  transit  ceases,  and  the  goods  are  placed  on  the  platform  of  the  de- 
pot. 


DELIVERY.  333 

at  the  risk  of  the  consignee  as  soon  as  they  are  delivered 
from  the  tackles  of  the  steamer  at  her  port  of  destination. 
Such  clauses  are  not  unreasonable  and  will  be  enforced 
by  the  courts.^ 

It  is,  however,  clear  that  no  obligation  of  the  carrier  is 
limited  by  such  a  clause,  except  what  is  expressed  in  the 
terms  of  the  clause  itself,  or  fairly  to  be  implied  therefrom. 
Such  clauses  do  not  exonerate  the  carrier  from  his  liabil- 
ity to  notify  the  consignee  of  the  arrival  of  the  goods.^ 

But  transferring  a  car  to  a  private  line  of  the  consignee,  over  which 
the  carrier  has  no  control,  is  a  good  delivery  though  the  goods  are  not 
taken  from  the  car.  East  St.  Louis  R.  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co., 
15  N.  E.  Rep.  (111.)  45  (1888);  reversing  24  111.  App.  279  (1887).  Deliv- 
ery to  a  public  warehouseman,  subject  to  the  carrier's  lien  for  freight,  is 
a  good  delivery  and  terminates  the  carrier's  liability.  Arthur  v.  St. 
Paul  &  D.  R.  Co.,  35  N.  W.  Rep.  (Minn.)  719  (1887).  After  the  refusal 
of  a  consignee  to  receive  the  goods  the  duty  of  the  carrier  is  to  safely 
warehouse.     The  Captain  John,  33  Fed.  Rep.  927  (1888). 

*  The  Santee,  2  Bened.  519  (1868);  s.  c.  on  Appeal,  7  Blatch.  186 
(1870);  The  Kate,  12  Fed.  Rep.  881  (1882).  In  this  case  the  words 
used  were  '*  the  goods  to  be  taken  from  the  ship  immediately  the  vessel 
is  ready  to  discharge."  In  Woodruff  v.  Havemeyer,  106  N.  Y.  131 
(1887),  the  clause  mentioned  in  the  text  was  considered  with  reference 
to  its  bearing  upon  the  charges  payable  by  the  consignee.  A  clause 
that  the  carrier  shall  only  be  liable  as  warehouseman  "  after  the  arrival 
at  the  depot,"  does  not  require  the  consignee  to  be  present  at  their  ar- 
rival. He  must  have  notice  and  a  reasonable  opportunity  to  remove 
the  goods.  Louisville  &  Nashville  R.  R.  v.  Oden,  80  Ala.  43  (1885). 
Under  very  similar  circumstances  the  New  York  Court  held  that  the 
carrier  was  liable  as  an  insurer,  until  such  notice  and  opportunity  were 
given.     McKinney  v.  Jewett,  90  N.  Y,  267  (1882). 

^  The  Santee,  7  Blatch.  186  (1870),  and  see  The  Thames,  Ibid.  226 
(1870). 

The  question  as  to  what  is  a  reasonable  opportunity  to  the  consignee 
to  take  away  the  goods,  is  always  one  to  be  determined  in  view  of  all 
the  circumstances  of  the  case.  For  example,  in  The  Kathleen  Mary,  8 
Bened.  165  (1875),  it  was  held  that  notice  to  the  consignee  given  on 
Thursday,  that  he  could  probably  have  some  of  his  goods  on  Friday, 
afforded  him  a  reasonable  opportunity  to  go  and  get  them. 

On  the  other  hand,  in  Thompson  v.  Liverpool  &  G.  W.  S.  S.  Co.,  44 
N.  Y.  Super.  Ct.  407  (1879),  it  was  held  that  a  notice  given  in  the 
morning  that  the  goods  were  on  the  pier  and  must  be  removed  during 
the  day,  was  insufficient.  Both  these  cases  arose  upon  the  construction 
of  a  bill  of  lading  requiring  the  consignee  to  take  the  goods  "  immedi- 
ately the  vessel  is  ready  to  discharge." 


334  THE    MODERN    LAW    OF  CARRIERS. 

Such  a  clause  would  not  exonerate  the  carrier  from 
liability  for  delivering  the  goods  to  some  person  other 
than  the  consignee/ 

Nor  would  it  relieve  the  carrier  from  liability  for  neg- 
ligence in  the  discharge  of  the  goods.  In  other  words,  his 
liability  continues  until  the  goods  are  safely  landed.^ 

It  has  sometimes  been  attempted  by  the  carrier  to 
obviate  the  necessity  of  giving  notice  to  the  consignee  by 
requiring  him  to  be  ready  to  take  the  goods  from  alongside 
(immediately  the  vessel  is  ready  to  discharge) ,  and  insert- 
ing a  clause  in  the  bill  of  lading  that  if  not  so  taken  by 
the  consignee,  they  may  be  deposited  on  the  pier  or  other- 
wise disposed  of,  and  remain  at  the  risk  of  the  consignee. 
But  even  in  such  cases  it  is  held  that  the  liability  of  the 

In  the  Alene,  19  Fed.  Rep.  875  (1883);  aff'd  25  Ibid.  562;  s.  c.  23 
Blatch,  335  (1885),  it  was  held  (construing  a  similar  clause)  that  a 
vessel  could  not  be  said  to  be  ready  to  discharge,  when  the  temperature 
was  such  that  the  goods  (which  in  that  case  were  oranges)  could  not  be 
discharged  without  destroying  them. 

To  the  same  effect  are  The  Surrey,  26  Fed.  Rep.  791  (1886);  The 
Boskenna  Bay,  22  Fed.  Rep.  665  (1884).  But  in  a  subsequent  case  in- 
volving the  same  casualty,  the  bill  of  lading  bound  the  consignee  to 
receive  the  fruit  from  the  ship's  side,  and  he  had  notice  that  the  dis- 
charge would  be  made  on  a  certain  day.  He  made  no  attempt  to  re- 
ceive or  care  for  the  fruit,  and  claimed  that  the  weather  was  unsuitable. 
Held  that  the  carrier  was  not  liable  for  injury  to  the  fruit  from  frost 
and  exposure.  Bonanno  v.  The  Boskenna  Bay,  36  Fed.  Rep.  697 
(1888);  and  see  The  Alesia,  35  Fed.  Rep.  531  (1888);  Jacobs  v.  Tutt,  33 
Fed.  Rep.  397  (1888). 

'  The  Santee,  7  Blatch.  186  (1870);  aff'g  2  Bened.  519  (1868). 

2  Zing  V.  Howland,  5  Daly  (N.  Y.),  136  (1874).  In  like  manner 
where  a  bill  of  lading  for  hams  stipulated  that  carrier  should  not  be 
liable  for  injury  to  them  while  at  a  station  awaiting  delivery,  and  that 
they  should  be  delivered  during  business  hours.  They  arrived  Thurs- 
day. Consignee  inquired  for  them  that  day  and  Friday,  and  was  told 
they  had  not  arrived.  Held  that  the  clause  did  not  extend  to  such  a 
case,  and  that  carrier  was  liable  for  injury  from  heat  during  the  delay. 

McKinney  v.  Jewett,  90  N.  Y.  267  (1882).  See,  also.  The  Alene 
and  The  Surrey,  a7ite,  p.  333,  n.  2.  Special  clauses  of  exemption  are 
only  while  the  goods  are  in  transit,  and  cease  to  be  applicable  after  the 
transit  has  ceased  and  the  goods  are  warehoused,  unless  it  is  otherwise 
expressed.  Union  Pacific  R.  Co.  v.  Moyer,  19  Pac.  R.  639  (Kansas), 
(1888);  Tarbell  v.  Royal  Exch.  Shipping  Co.,  no  N.  Y.  170  (1888). 


DELIVERY.  335 

carrier  does  not  terminate  altogether,  but  that  he  remains 
liable  for  any  damage  done  to  the  goods  while  on  the  pier 
or  in  the  warehouse  from  the  negligence  of  his  servants.^ 

Bills  of  lading  sometimes  contain  clauses  giving  the 
carrier  an  option  as  to  the  place  of  delivery.  In  such  case 
clauses  relating  to  the  one  branch  of  the  option  cannot  be 
considered  as  applicable  to  the  other.^ 

The  question  has  been  sometimes  mooted  whether  the 
delivery  by  the  carrier  of  goods  subject  to  customs  duties 
to  the  officers  of  the  customs,  charged  with  their  custody 
until  the  duty  shall  be  paid,  might  not  be  considered  as 
terminating  his  liability  as  carrier,  and  it  was  so  held  by 
the  Supreme  Court  of  the  State  of  New  York.^ 


1  Gleadell  v.  Thomson,  56  N.  Y  194  (1874);  aff'g  35  N.  Y.  Super. 
Ct.  232  (1873).  The  Superior  Court  in  this  case  held  that  the  carrier's 
liability  remained  in  full  force  until  notice  was  given  to  the  consignee 
of  the  arrival  of  the  goods.  This  construction  of  the  particular  bill  of 
lading  was  not  sustained  in  the  Court  of  Appeals,  but  the  judgment  was 
affirmed  for  the  reason  stated  in  the  text.  In  the  same  case  there  was 
a  clause  in  the  bill  of  lading  that  the  carrier  should  not  be  liable  for 
any  negligence  of  the  pilot,  master  or  marmers.  The  court  construed 
this  clause  from  its  connection  with  the  context,  to  mean  negligence 
occurring  on  the  voyage,  and  held  that  it  did  not  apply  to  the  negligence 
of  the  mariners  in  handling  the  goods  or  dealing  with  them  while  they 
were  on  the  pier,  after  the  vessel  had  been  moored. 

To  the  same  effect  is  Central  R.  R.  v.  Smuck,  49  Ind.  302  (1874). 
Even  with  such  clauses  the  consignee's  obligation  to  receive  begins 
only  when  he  has  reasonable  opportunity  so  to  do.  Tarbell  v.  Royal 
Exchange  Shipping  Co.,  no  N.  Y.  170  (1888). 

^  Woodruff  z'.  Havemeyer,  106  N.  Y.  129  (1887).  In  this  case  the 
first  clause  of  the  bill  of  lading  provided  that  the  articles  "  shall  be  at 
the  risk  of  the  shipper,  owner  or  consignee  thereof,  as  soon  as  delivered 
from  the  tackles  of  the  steamer."  The  option  was  then  given  to  the  car- 
rier to  discharge  the  cargo  at  New  York  or  Brooklyn,  the  consignee  of 
cargo  to  pay  charges  thereon  as  expressed  in  the  margin.  These 
charges  were  for  landing  and  wharfinger  charges,  and  fixed  the  amount 
payable  in  detail.  The  carrier  availed  himself  of  the  option  to  dis- 
charge on  the  wharf  in  Brooklyn,  and  the  Court  held  that  the  defendants 
were  liable  for  these  charges  and  could  not  insist  that  the  goods  ought 
to  have  been  delivered  directly  into  the  lighters  from  the  ship's  tackles, 
as  they  requested. 

^  Redmond  v.  Liverpool,  N.  Y.  &  P.  Steamship  Co.,  56  Barb.  320 
(1870). 


336  THE   MODERN    LAW   OF   CARRIERS. 

But  this  decision  was  reversed  by  tlie  Court  of  Ap- 
peals, and  it  was  held  that  the  custody  of  the  officers  of 
the  customs  did  not,  per  se,  terminate  the  carrier's  liabil- 
ity, although  their  delivery  to  and  storage  in  a  bonded 
warehouse,  pursuant  to  law  and  after  due  notice  to  the 
consignee,  would  terminate  it.^ 

In  all  cases  the  requirements  of  the  bill  of  lading  as 
to  the  place  of  delivery  should  be  complied  with,  and  the 
liability  of  the  carrier  as  such  continues  until  such  com- 
pliance.'^ 

*  s.  c.  on  Appeal,  46  N.  Y.  578  (1871).  In  this  case  the  Court  say 
(p.  587):  "  It  may  well  be  that  if  the  owner  fails  to  comply  with  the 
laws,  and  cannot  lawfully  land  or  remove  the  goods,  and  they  are  seized 
and  taken  by  the  officers  of  the  government,  or  if,  upon  the  omission  of 
the  owner  after  a  reasonable  opportunity  is  given  him  for  that  purpose, 
to  obtain  the  necessary  authority  to  remove  or  receive  the  goods,  they 
are  in  pursuance  of  law  delivered  and  received  by  the  proper  officers, 
in  other  words,  placed  in  the  custody  of  the  law,  the  carrier  would  be 
discharged  from  further  responsibility  to  the  merchant.  It  would  be 
equivalent  to  a  storing  of  the  goods  under  circumstances  authorizing 
the  master  of  the  vessel  to  store  them  for  the  owner."  In  other  words, 
it  was  held  that  the  possession  of  the  officers  of  the  government  was 
only  a  qualified  possession. 

To  the  same  effect  is  Mc Andrew  v.  Whitlock,  52  N.  Y.  40  (1873). 
This  latter  contains  an  examination  of  the  authorities  relating  to  the 
carrier's  common  law  duty  in  reference  to  the  discharge  of  perishable 
articles,  but  as  this  did  not  arise  under  any  special  clause  in  the  bill  of 
lading,  it  is  not  further  referred  to  here. 

If,  however,  the  bill  of  lading  exempts  the  carrier  from  liability  for 
any  specific  reason,  as,  for  example,  fire,  while  the  goods  are  in  the  cus- 
tody of  the  customs  officers,  this  clause  will  be  valid.  The  Eg>^pt,  25 
Fed.  Rep.  320  (1885).  In  Rowland  v.  Miln,  2  Hilt.  (N.  Y.)  i56'(i858), 
it  was  held  that  if  the  goods  were  wrongfully  taken  and  warehoused  by 
the  collector,  the  carrier  was  not  thereby  excused  for  not  delivering 
them  to  the  consignee,  but  must  seek  his  remedy  in  an  action  against 
the  collector. 

2  For  example,  in  Moore  v.  Michigan  Cent.  R.  R.  3  Mich.  23  (1853), 
it  was  held  that  a  clause  in  the  bill  of  lading  binding  the  carrier  to  de- 
liver flour  "  on  board  "  at  Detroit,  rendered  the  carrier  liable  for  loss 
by  fire  while  the  goods  were  in  his  warehouse  at  Detroit  waiting  the 
actual  delivery  on  board  the  vessel. 

So  the  reservation  in  the  bill  of  lading  of  the  privilege  of  re-ship- 
ping does  not  limit  the  liability  of  the  carrier  to  transfer  or  cause  the 
goods  to  be  transported  to  the  specified  place  of  destination.  The  only 
effect  of  such  a  clause  is  to  allow  the  carrier  to  transport  the  goods  in  a 


INSURANCE.  337 

SECTION  IX. 
INSURANCE. 

Of  late  years  clauses  have  been  inserted  in  bills  of 
lading,  in  reference  to  policies  of  insurance.  They  have 
been  in  two  forms  : 

1.  That  if  loss  or  injury  to  the  goods  should  occur  and 
be  paid  for  by  the  carrier,  he  should  have  the  benefit  of  any 
insurance  effected  by  the  shipper. 

2.  That  the  carrier  should  not  be  liable  for  any  loss 
against  which  the  shipper  might  protect  himself  by  insur- 
ance. 

vessel  other  than  that  specified  in  the  bill  of  lading.     Little  v.  Semple, 

8  Mo.  99  (1843);  McGregor  v.  Kilgore,  6  Ohio,  361  (1834);  Whitesides 
V.  Russell,  8  Wats.  &  Sargent  (Penn.),  44  (1844). 

So  in  Cain  v.  Garfield,  i  Lowell,  483  (1870),  it  was  held  that  a  re- 
cital in  the  bill  of  lading  that  the  vessel  was  bound  to  a  certain  wharf 
in  Charleston,  followed  by  an  agreement  to  deliver  the  goods  safely  "  at 
the  aforesaid  port  of  Charleston,"  obliged  the  carrier  to  deliver  the  goods 
at  that  particular  wharf,  and  that  the  liability  of  the  carrier  continued 
until  the  goods  were  there  delivered. 

A  clause  in  the  bill  of  lading  which  provided  that  the  goods  were 
shipped  for  "  Valparaiso  and  a  market,"  was  held  in  Gaither  v.  Myrick, 

9  Maryland,  118  (1856),  to  authorize  the  shipper  to  carry  the  goods  to 
any  place  he  might  think  desirable  for  a  market,  beyond  the  port  of  Val- 
paraiso. An  inland  bill  of  lading  which  described  the  goods,  which  in 
that  case  were  a  package  of  money,  as  addressed  to  the  cashier  of  the 
Artisans'  Bank,  was  held  not  necessarily  to  involve  personal  delivery  to 
the  cashier,  but  the  liability  of  the  carrier  was  held  to  he  terminated 
by  the  delivery  of  the  money  to  the  clerk  or  receiving  teller  of  the  bank 
while  he  stood  behind  its  counter  in  the  discharge  of  his  duties  as  teller. 
Hotchkiss  V.  Artisans'  Bank,  2  Abb.  Ct.  App.  Dec.  (N.  Y.)  403  (1866). 

Where  there  is  no  express  privilege  of  re-shipment,  the  ship  is  bound 
to  go  to  the  place  named  if  she  can  go  safely.  She  cannot  go  to  a 
neighboring  port  and  send  the  goods  on  by  lighter.  The  burden  is  on 
the  carrier  to  show  that  the  ship  cannot  safely  go  to  the  place  named 
Shaw  V.  Gordon,  78  Mass.  488  (1858). 

But  a  ship  which  has  put  into  port  in  distress  and  is  likely  to  be 
long  delayed,  is  liable  if  she  refuse  to  deliver  goods  to  the  owner  on  de- 
mand at  that  port.  The  Martha,  35  Fed.  Rep.  313  (1888)  ;  and  see 
Jacobs  V.  Tutt,  t,2,  Fed.  Rep.  589  (1888).  Where  the  carrier  has  issued 
an  assignable  bill  of  lading  his  duty  is  to  deliver  only  to  the  holder  of 
the  bill.  Penn.  R.  Co.  v.  Stern,  119  Pe'nn.  24  (1888);  North  v.  Merch. 
&  M.  Trans.  Co.,  146  Mass.  (1888);  Weyandz;.  Atchinson,  T.  &  S.  F.  R. 
Co.,  39  N.  W.  Rep.  (Iowa),  899  (1888);  North  Penn.  R.  Co.  v.  Com- 
mercial Nat.  Bk.  of  Chicago,  123  U.  S.  727  (1887). 
22 


338  THE   MODERN   LAW   OF   CARPvlERS. 

It  is  very  probable  tbat  in  equity  in  tbe  absence  of  tbe 
clause  firstly  mentioned,  an  Insurance  Company  which 
should,  in  case  of  loss,  pay  to  the  shipper  the  amount  in- 
sured upon  his  goods,  would  be  subrogated  to  his  claim 
against  the  carrier.^ 

In  like  manner  it  has  been  held  that  an  insurance 
company,  upon  paying  the  value  of  a  house  set  on  fire  by 
sparks  from  an  engine,  is  entitled  to  be  subrogated  to  the 
claim  of  the  owner  against  the  railroad  company  for  the  in- 
jury to  the  house.^  This  right  of  subrogation,  independ- 
ently of  contract,  is  not,  however,  an  absolute  one.  The 
parties  effecting  the  insurance  may  occupy  such  a  rela- 
tion to  those  for  whose  benefit  it  is  effected,  that  the  in- 
surers of  the  cargo  will  not  be  entitled  to  be  subrogated 
to  a  right  of  action  against  the  carrier.  If  it  appear  that 
the  insurance  upon  the  cargo  is  effected  for  the  benefit  of 
the  carrier,  and  the  premium  is  paid  by  him,  the  insurer 
of  the  cargo  who  pays  a  loss  upon  it,  will  have  no  right 
of  subrogation  against  the  carrier.^ 

But  wherever  the  right  of  subrogation  in  favor  of  the 


^  Comegys z^.  Vassar,  I  Peters,  193(1828);  Hall  z'.  The  Railroad  Co., 
13  Wall.  371  (1871);  Mobile &M.  R.  Co.  v.  Jurey,  iii  U.  S.  584(1883); 
Gales  V.  Hailman,  11  Penn.  St.  515  (1849)  ;  Clark  e/.  Wilson,  103  Mass. 
219  (1869);  Rockingham  Mutual  Ins.  Co.  z'.  Bosher,  39  Maine,  253 
(1855);  Peoria  Ins.  Co.  v.  Frost,  37  111.  333  (1865);  Cole  v.  Malcolm,  66 
N.  Y.  366  (1876);  Mason  v.  Gainsbury,  3  Doug.  61  (1782);  Law  Ass. 
Co.  V.  Oakley,  84  Law  Times  (Q.  B.  Div.),  280  (i888).  From  these  cases 
and  those  cited  in  them  it  will  be  seen  that  the  principle  stated  in  the 
text  is  a  very  general  one,  and  applies  not  only  to  carriers  but  to  all 
cases  where  an  insurer  pays  a  loss.  He  thereby  becomes  entitled  to  what- 
ever indemnity  the  assured  had.  Upon  the  argument  that  a  carrier,  being 
also  an  insurer,  has  an  equal  right  with  the  underwriters,  the  Court,  in 
Hall  V.  The  Railroad  Co.,  said  that  a  carrier  was  not  an  insurer.  This 
dictum  does  not  quite  agree  with  those  of  other  authorities,  but  it  is 
certain  that  a  tarrier  has  not  all  the  rights  of  an  insurer.  Whether 
or  not  a  carrier  is  an  insurer  to  his  freighters  he  has  not,  in  the  absence 
of  contract  to  that  effect,  the  right  of  subrogation  as  regards  other  in- 
surers. 

'  Conn.  Fire  Ins.  Co.  v.  Erie  R.  Co.,  73  N.  Y.  Rep.  399  (1S7S). 

3  The  Sidney,  23  Fed.  Rep.  88  (1885). 


INSURANCE.  339 

insurer  and  against  the  carrier  exists,  the  shipper  cannot 
defeat  it,  by  assigning  the  policy  of  insurance  to  the  car- 
rier, upon  payment  of  the  loss  by  the  latter.  In  such  case 
the  insurer  is  entitled  to  have  the  amount  paid  by  the  car- 
rier deducted  from  the  claim  against  himself^ 

It  was  to  relieve  the  carrier  from  the  consequences  of 
the  liability  to  the  insurance  company  imposed  upon  him 
by  the  decisions  already  cited,  that  the  clause  under  con- 
sideration was  inserted  in  bills  of  lading.  It  is  reasonable 
and  valid,  and  prevents  a  rocovery  by  the  insurer  against 
the  carrier,  even  though  the  loss  be  caused  by  the  negli- 
gence of  the  carrier's  servants.^  Such  a  clause  is  not  ren- 
dered invalid  by  a  statute  prohibiting  the  carrier  from  limit- 
ing his  liability.^ 

The  effect  of  this  stipulation  obviously  is  to  deprive 
the  insurer  of  his  right  of  subrogation  by  a  contract  to 
which  he  is  not  a  party.  But  to  this  there  is  no  valid  ob- 
jection. The  doctrine  of  subrogation  always  assumes  that 
the  party  entitled  thereto  succeeds  to  the  rights  of  another, 
and  to  no  greater  rights.  The  insurer  is  subrogated  to 
the  rights  of  the  shipper,  neither  more  nor  less.  But  the 
insurer  may  himself  guard  against  this  loss  by  giving 
notice  to  persons  dealing  with  him  that  if  the  bills  of 
lading  which  they  accept  deprive  the  insurer  of  subroga- 
tion to  the  claim  against  the  carrier,  a  higher  rate  of  pre^ 

*  Atlantic  Ins.  Co.  v.  Storrow,  5  Paige  (N.  Y.),  285  (1835). 

2  Rintoul  V.  N.  Y.  Central  &  H.  R.  R.  R.,  21  Blatch.  439;  s.  c  17  Fed. 
Rep.  905  (1883).  In  this  case  the  language  of  the  bill  of  lading  was 
that  the  carrier  should  "  have  the  full  benefit  of  any  insurance  that  may- 
have  been  effected  upon  or  on  account  of  said  goods."  ,  Phenix  Ins.  Co. 
V.  Erie  Trans.  Co.,  117  U.  S.  325  (1885);  aff'g  s.  c  10  Biss.  18  (1879); 
Mercantile  Mut.  Ins.  Co.  v.  Calebs,  20  N.  Y.  177  (1859);  Piatt  v.  Rich- 
mond, Y.  R.  &C.  R.  R.,  108  N.  Y.  358  (1888).  Compare,  also.  Van  Natta 
V.  Mutual  Security  Ins.  Co.,  2  Sand.  (N.  Y.  Superior  Ct.)  496  (1849).  In 
.this  case  the  carrier  himself  was  the  insured,  and  was  allowed  to  re- 
cover. 

'  British  &  For.  M.  Ins.  Co.  v.  Gulf,  C  &  S.  F.  R.  Co.,  63  Texas, 
475  (1885). 


340  THE    MODERN    LAW   OF   CARRIERS. 

mium  will  be  charged.  In  sucli  case  it  becomes  the  duty 
of  the  insured  to  disclose  to  the  insurer  the  nature  of  the 
bill  of  lading  which  is  delivered  and  accepted.  If  the 
shipper  fail,  under  such  circumstances,  to  disclose  this  to 
the  insurer,  he  cannot  recover.^  But  in  the  absence  of 
fraud  or  concealment,  or  any  special  facts  making  it  the 
duty  of  the  shipper  to  disclose  the  terms  of  his  bill  of 
lading,  he  is  not  bound  to  make  such  disclosure.^ 

The  clause  under  consideration  does  not,  however,  com- 
pel the  shipper  to  exhaust  his  remedy  against  the  insur- 
ance company.  He  has  a  choice  of  remedies,  and  may  sue 
either  the  carrier  or  the  insurer.  If  the  carrier  pay  the  loss, 
he  becomes  subrogated  to  the  rights  of  the  insured  under 
the  policy.  But  the  failure  of  the  insured  to  sue  the  in- 
surer is  not  a  defense  available  to  the  carrier.^  From  this 
and  the  cases  previously  cited  in  this  section,  it  is  mani- 
fest that  the  remedy  of  the  shipper  against  the  insurer  is 
not  the  primary  remedy.  This  is  illustrated  by  a  case  in 
which  the  shipper,  either  inadvertently  or  for  the  purpose 
of  securing  better  rates,  contracted  with  the  carrier,  and 
also  with  the  insurer,  that  each  should  have  the  benefit  of 
his  claim  against  the  other.  A  loss  happened  and  the 
shipper  sued  the  insurer.  It  was  held  that  the  shipper 
had,  by  his  contract  with  the  carrier,  disabled  himself  from 
giving  to  the  insurer  the  stipulated  benefit  of  his  right  of 
action  against  the  carrier,  and  that  therefore  the  insurer 
was  not  liable.^ 

*  Tate  V.  Hvslop,  15  Q.  B.  Div.  368  (1885). 

"^  Jackson  Co  v.  Boylston  Ins.  Co.,  139  Mass.  508  (1885).  In  this 
and  the  case  last  cited  the  policies  were  open  policies,  and  the  notice  of 
shipment  and  request  that  the  risk  should  be  entered  on  the  policy 
were  given  after  the  contract  of  affreightment  was  made.  But  some  of 
the  special  facts  out  of  which  the  duty  of  disclosure  was  held  in  the 
English  case  to  arise,  did  not  exist  in  the  Massachusetts  case. 

3  Inman  V.  South  Carolina  R.  Co.,  129  U.  S.  128  (1889).  If  the. 
shipper  has  insurance  available  to  the  carrier,  the  benefit  of  which  he 
wrongfully  refuse  to  allow  to  the  latter,  the  carrier  may  set  this  refusal 
up  as  a  counter  claim  in  an  action  by  the  shipper.       s.  c 

*  Carstairs  z'.  Mechanics' &    Traders' Ins.  Co.,   18   Fed.   Rep.    473 


INSURANCE.  341 

The  second  stipulation  before  mentioned,  in  reference 
to  insurance,  is  also  reasonable  and  valid.  But  like  all 
other  clauses  this  stipulation  should  be  construed  accord- 
ing to  the  ordinary  meaning  of  its  terms,  and  applies,  not 
to  such  unusual  insurance  as  might  be  obtained  by  special 
agreement,  but  to  the  ordinary  marine  policy.^  And  it  is 
not  clearly  settled  whether,  in  those  Courts  which  refuse  to 
admit  the  validity  of  an  agreement  to  exempt  the  carrier 
from  liability  for  the  negligence  of  his  servants,  this  clause 
would  be  enforced  in  the  case  of  loss  caused  by  such  neg- 
ligence. It  has  been  held  that  it  would  not  be  enforced, 
in  a  case  where  the  loss  was  caused  by  defective  construc- 
tion.* 

The  clause  in  question  does  not  apply  to  the  case  of  a 
loss  of  property  by  theft.^ 


(1883).     The  Court  in  this  case  advert  to  the  fact  that  the  policy  was 
effected  before  the  goods  were  shipped. 

^  The  Titania,  19  Fed.  Rep.  loi  (1883).  In  this  case  a  bill  of 
lading  made  in  England,  for  transportation  in  an  English  ship  to 
New  York,  provided,  "  The  shipowner  is  not  to  be  liable  for  any  dam- 
age to  any  goods  which  is  capable  of  being  covered  by  insurance." 
Held  that  this  was  valid,  but  must  be  construed  to  refer  to  insurance 
"  which  might  be  obtained  in  the  usual  course  of  business  from  the  or- 
dinary insurance  companies,  either  in  the  usual  form,  or  in  the  custo- 
mary course  of  business  upon  special  application."  It  was  held  that  in- 
jury from  breaking  loose  of  a  spare  propeller  was  not  within  this  ex- 
emption, if  it  arose  from  negligence  in  securing  the  propeller,  as  this 
made  the  vessel  unseaworthy. 

2  The  Hadji,  20  Fed.  Rep.  875  (1884);  aff'g  s.  c  16  Fed.  Rep.  861 
(1882).  The  Circuit  Court  cite  the  case  stated  ante,  p.  339,  in  which  it 
was  held  that  the  stipulation  was  valid,  which  gives  to  the  carrier  the 
benefit  of  the  insurance  effected  by  the  shipper.  But  the  Court  add  : 
■^'It  is  quite  another  thing  to  permit  a  carrier  to  compel  the  shipper,  as  a 
condition  for  the  transportation  of  his  goods,  to  enter  into  an  independent 
contract  with  a  third  party  for  the  carrier's  benefit,  in  order  that  the 
latter  may  escape  loss  arising  from  his  own  conduct.  .  .  The  only 
effect  that  can  be  given  to  the  stipulation  here  is  by  construing  it  as 
exempting  the  claimants  from  liability  for  any  damage  that  the  shipper 
could  insure  against,  not  arising  from  the  carrier's  own  negligence." 
There  is  a  dictum  to  the  same  effect  in  Rintoul  v.  New  York  Central  R. 
R.,  2T  Blatch.  439;  s.  c.  17  Fed.  Rep.  905  (1883). 

3  Taylor  v.  Liverpool  &  G.  W.  S.  S.  Co.,  L.  R.  9  Qu.  B.  546  (1874). 


342         THE  MODERN  LAW  OF  CARRIERS. 

There  is  occasionally  inserted  in  bills  of  lading  a 
clause  that  the  carrier  shall  insure  the  goods  for  the  bene- 
fit of  the  shipper  during  some  period  of  the  carrier's  pos- 
session. In  such  case  the  carrier,  if  it  has  failed  to  insure, 
is  liable  for  a  loss  by  fire,  although  the  bill  of  lading  con- 
tained another  clause,  exempting  the  carrier  from  liability 
for  loss  by  "fire  at  sea  or  in  port."  ^ 

SECTION  X. 

RESHIPMENT. 

The  clause  often  inserted  in  bills  of  lading,  giving  to 
the  carrier  the  privilege  of  reshipment,  is  not  to  be  ex- 
tended beyond  the  fair  meaning  of  its  terms.  It  does  not 
entail  the  duty  of  reshipment,  and  the  carrier  is  not  lia- 
ble if  he  fail  to  reship  the  goods,  in  case  of  delay  not  at- 
tributable to  his  fault,  as,  for  example,  low  water  in  a 
river.^  On  the  other  hand  if  he  avail  himself  of  the  privi- 
lege reserved,  and  does  reship  the  goods,  his  original  lia- 
bility is  in  no  wise  affected,  and  continues  until  he  has 
safely  delivered  them  at  the  port  of  destination.^ 

And  if  the  clause  gives  him  the  privilege  of  reshipping 
at  a  particular  place,  he  can  reship  only  there,  and  will  be 
liable  if  he  should  reship  anywhere  else,  although  the 
goods  were  lost  in  a  storm  for  which  the  carrier  would 
not  otherwise  have  been  responsible.* 

^  The  Louisiana,  37  Fed.  Rep.  264  (1889). 

^  Sturgess  v.  The  Columbus,  23  Mo.  230  (1856);  Broadwell  v.  But- 
ler, I  Newb.  Adm.  171  (1854);  aff'd  6  McLean,  296  (1854).  But  see 
Hatchet  v.  The  Compromise,  12  La.  Ann.  783  (1857),  holding  the  con- 
trary. 

^  Carr  z'.  The  Michigan,  27  Mo.  196(1858).  This  case  holds  also 
that  it  is  merely  a  privilege  of  reshipment,  not  of  stowing  on  another 
boat.  Dunseth  v.  Wade,  3  111.  285  (1840).  In  the  latter  case  the  clause 
read:  "  With  privilege  of  reshipping  on  any  good  boat."  It  was  held 
that  the  carrier,  if  he  reshipped,  must  show  that  he  placed  the  goods  on 
a  "  good  boat."  Little  v.  Semple,  8  Mo.  99  (1843);  McGregor  7-.  Kilgore, 
6  Ohio,  361  (1834);  Whiteside 7^  Russell,  8  Watts.  &  S.  (Penn.)  44  (1844). 

*  Cassilay  v.  Young,  4  Ben.  Monr.  (Ky.)  265  (1844).     This  case  also 


PRODUCE   EXCHANGE   BILL   OF   LADING.  343 

SECTION    XI. 
PRODUCE  EXCHANGE  BILL  OF  LADING. 

Judges  and  statesmen,  lawyers  and  men  of  business 
have  alike  lamented  the  evil  of  the  lack  of  uniformity  in 
the  decision  of  questions,  relating  to  commerce  between 
states  and  nations,  to  which  attention  has  been  so  often 
drawn  in  the  pages  of  this  book.  The  Legislature  of  our 
leading  commercial  State  has  made  an  attempt  to  remedy 
them.  It  has  created  a  corporation  now  known  as  the  New 
York  Produce  Exchange,  the  purposes  of  which  are,  i7iter 
alia^  "  to  inculcate  just  and  equitable  principles  in  trade  ;  to 
establish  and  maintain  uniformity  in  commercial  usages, 
to  adjust  controversies  and  misunderstandings  between 
persons  engaged  in  business.^ 

The  New  York  Produce  Exchange  has  made  an  im- 
portant attempt  to  perform  the  duties  thus  devolved  upon 
it.  It  felt  that  this  diversity  in  the  decisions  as  to  the  rights 
of  parties  engaged  intrade,  was  neither  just  nor  equitable, 
and  that  the  controversies  and  misunderstandings  which 
had  arisen  in  consequence  between  the  carrier  and  the  ship- 
per, ought  to  be  adj  usted.  On  the  one  side  it  recognized  that 
the  carrier  ought  not  to  be  exempted  from  responsibility 
for  the  equipment  and  stowage  of  its  vessel,  and  that  it 
should  not  be  allowed  to  devolve  this  responsibility  upon 
any  ship's  husband  or  manager.  It  recognized,  on  the 
other  hand,  that  when  the  carrier  has  done  all  in  its 
power  to  provide  a  proper  and  seaworthy  vessel,  manned 
by  competent  officers  and  crew,  and  has  stowed  her  cargo 
on  board  with  a  due  regard  to  the  risks  of  the  voyage,  it 
ought  not  to  be  liable  for  the  consequences  of  the  care- 
holds  that  this  clause  will  not  justify  waiting  indefinitely  for  another 
boat. 

^  Laws  of  the  State  of  New  York,  1862,  Chap.    359,  sec.   3;     Laws 
1868,  Chap.  30,  sec.  i;     Laws  of  1882,  Chap.  36,  sec.   2. 


344  THE    MODERN    LAW   OF    CARRIERS. 

lessness  of  the  persons  entrusted  with  the  navigation  of 
the  vessel,  over  whom  during  the  voyage,  in  the  nature  of 
things,  no  supervision  can  be  exercised.  In  1886  the  Pro- 
duce Exchange  appointed  a  committee,  representing  the 
carriers,  the  shippers,  and  the  Average  adjusters  (who  are 
really  umpires  between  the  two),  and  this  committee, 
after  full  consideration  of  the  subject,  entered  into  corres- 
pondence with  the  Liverpool  Ship-owners'  Association. 
The  representatives  of  both  bodies  adopted  as  a  basis  of 
t!ieir  negotiations  a  form  of  bill  of  lading  which  had  been 
recommended  by  the  International  Association  for  the 
reform  and  codification  of  the  law  of  Nations,  and  dis- 
cussed it  article  by  article,  until  a  form  satisfactory  to  all 
parties  had  been  agreed  upon.  The  carriers  agreed  to 
strike  out  of  the  bill  of  lading  which  theretofore  had  been 
issued  by  them,  the  clauses  which  exempted  them  from  re- 
sponsibility for  the  sea-worthiness  of  the  ship  and  for  her 
proper  stowage.  These  clauses  were  claimed  to  be  valid 
in  the  English  Courts  and  the  Courts  of  the  State  of 
New  York,  and  in  giving  them  up  the  carrier  gave  up 
rights  which  were  certainly  important  and  valuable.  On 
the  other  hand  the  shippers,  fully  represented  as  they  were 
on  the  committee  appointed  by  the  Exchange,  acknowl- 
edged the  justice  of  the  claim  by  the  carrier,  that  it  should 
not  be  responsible  for  the  negligence  of  the  master  and 
mariners,  to  which  it  was  in  no  way  privy,  and  volunta- 
rily agreed  to  accept  a  bill  of  lading  containing  a  clause 
of  exemption  from  liability  for  such  negligence.  The 
form  of  bill  of  lading  thus  agreed  upon  has  been  adopted 
by  Commercial  Exchanges  in  various  parts  of  America. 

In  the  conduct  of  this  long  negotiation  the  Produce  Ex- 
change was  discharging  the  duties  devolved  upon  it  by 
law.  It  was  to  all  intents  and  purposes  a  local  legisla- 
ture, and  while  its  action  certainly  is  not  binding  upon 
parties  making  contracts  outside  the  limits  of  the  State, 


PRODUCE    EXCHANGE    BILL   OF   LADING.  345 

yet  it  seems  equally  clear  that  it  is  binding  upon  those 
making  contracts  within  the  State  of  New  York,  until 
Congress  shall  intervene  and  take  action  in  the  premises. 

The  right  of  a  Legislature  to  devolve  upon  a  commis- 
sion or  officer  of  the  Government  powers  of  a  quasi-legisla- 
tive character,  is  now  too  well  settled  to  admit  of  dispute. 
Congress,  for  example,  has  conferred  upon  the  Secretary 
of  the  Treasury  the  right  to  make  rules  and  regulations 
in  reference  to  the  whole  subject  of  the  importation  of 
foreign  goods,  and  the  payment  of  duties  thereon,  and  has 
authorized  other  officers  to  prescribe  rules  respecting  mat- 
ters within  their  jurisdiction,  and  these  regulations  have 
been  frequently  enforced  by  the  Courts,  and  held  to  have 
the  force  of  statutes.^ 

The  great  number  of  general  statutes  for  the  creation 
of  corporations;  that  have  been  passed  in  all  the  States,  is 
perhaps  the  most  notable  instance  of  the  rule  thus  stated. 
The  granting  of  charters  was,  in  this  country  at  least, 
within  the  power  of  the  legislature  alone.  But  legisla- 
tures everywhere  have  found  it  expedient  to  delegate  this 
power,  either  to  commissions,  under  whose  authority  cor- 

^  "  This  Court  has  too  repeatedly  said  that  they  have  the  force  of 
law  to  make  it  proper  to  discuss  that  point  anew."  Gratiot  v.  United 
States,  4  How.  80  (1846);  Ex-parte  Reed,  100  U.  S.  13  (1879); 
United  States  v.  Barrows,  i  Abb.  U.  S.  351  (1869). 

The  rules  of  Court  "  are  made  under  special  statutory  authority,  and 
when  made  have  the  force  and  effect  of  statutes."  Matter  of  Moore, 
108  N.  Y.  280  (i888). 

The  Commissioners  of  Pilots,  who  were  officers  appointed  by  the 
Chamber  of  Commerce,  adopted  rules,  pursuant  to  an  authority 
conferred  by  statute,  and  these  were  held  to  be  valid  and  binding. 
Sturges  V.  Spofford,  45  N.  Y.  446  (1871);  Cisco  v.  Roberts,  36  N.  Y. 
292  (1867). 

The  whole  body  of  Civil  Service  legislation  rests  upon  the  right 
of  the  legislature  to  authorize  an  executive  officer  to  prescribe 
rules,  determining  the  manner  in  which  persons  shall  be  admitted 
into  the  service  of  the  State.  The  validity  of  this  legislation  was  ex- 
pressly adjudged  by  the  Supreme  Court  of  Massachusetts,  138  Mass. 
601  (1885),  and  has  been  frequently  recognized  in  other  cases.  People  v. 
Civil  Service  Boards,  103  N.  Y.  657  (1886);  aff'g  s.  c.  41  Hun,  287 
(1886);  People  V.  Common  Council,  16  Abb.  N.  C  96  (1884). 


346  THE   MODERN    LAW   OF   CARRIERS. 

porations  come  into  being,  as  in  tlie  case  of  the  rapid 
transit  legislation  of  the  State  of  New  York  ;  or  directly 
to  individuals  who,  under  certain  regulations  declared  by 
the  statute,  create  a  corporation  by  filing  certain  papers  in 
the  prescribed  office. 

It  would  seem  to  follow  that  the  action  of  the  Produce 
Bxchage,  in  adopting  the  form  of  bill  of  lading  in  question, 
had  the  force  and  effect  of  a  Statute  of  the  State  of  New 
York,  and  that  all  contracts  made  in  that  form  within  the 
State  of  New  York  are  valid. 

The  Federal  Courts  have  never  held  that  a  contract  is 
against  public  policy  which  is  made  under  the  circumstan- 
ces just  stated.  They  have  held  that  a  unilateral  agree- 
ment, imposed  by  the  carrier,  with  no  freedom  of  choice 
on  the  part  of  the  shipper,  is  against  public  policy.  But 
no  case  has  yet  decided  that  such  an  agreement,  entered 
into  intelligently,  after  full  discussion  and  for  an  adequate 
consideration,  is  against  public  policy  or  invalid.^ 

The  Courts  have  not  failed  to  recognize  that  freedom 
of  contract  is  at  the  basis  of  the  commercial  prosperity  of 
both  England  and  America.  They  constantly  declare 
that  they  do  not  make  contracts  for  parties,  but   their 


*  The  reason  which  the  Supreme  Court  gives  for  refusing  to  enforce 
the  clause  in  question  is  thus  stated  in  Railroad  Company  v.  Lockwood, 
17  Wall.  357  (1873),  At  p.  379  the  Court  say  :  "  The  carrier  and  his 
customer  do  not  stand  on  a  footing  of  equality.  The  latter  is  only  one 
individual  in  a  million.  He  cannot  afford  to  higgle  or  stand  out  and 
seek  redress  in  the  Courts.  His  business  will  not  admit  of  such  a  course. 
He  prefers  rather  to  accept  any  bill  of  lading,  or  sign  any  paper  the 
carrier  presents,  often  indeed  without  knowing  what  the  one  or  the 
other  contains." 

This  language  is  repeated  in  The  Montana,  129  U.  S.  441  (1889). 
In  the  case  stated  in  the  text  we  see  an  entirely  different  state  of  affairs. 
The  carrier's  customers  have  themselves  become  a  corporation.  They 
are  clothed  by  the  legislature  with  power  to  stand  out,  and  in  the  lan- 
guage of  the  Court  "  to  higgle."  They  object  to  certain  clauses  which 
the  carrier  concedes.  They  agree  to  other  clauses  which  they  admit  to 
be  fair  and  just.  The  whole  reasoning  of  the  Supreme  Court  is  ina])- 
plicable  to  this  condition  of  things. 


PRODUCE    EXCHANGE   BILL   OF    LADING.  347 

function  is  to  enforce  those  which  the  parties  themselves 
have  made. 

It  would  therefore  seem  that  the  rule  "  Cessante  ra- 
tione^  cessat  et  ipsa  /^x,"  ^  should  apply  to  the  questions 
which  may  hereafter  arise  as  to  the  validity  of  this  agree- 
ment, which  has  come  to  be  known  as  the  Produce  Ex- 
change Bill  of  Lading. 

In  the  history  of  this  negotiation  between  the  carriers 
and  the  shippers,  we  seem  to  be  reading  a  chapter  in 
Maine's  Ancient  Law.  It  was  on  the  lines  stated  by  him 
that  the  whole  commercial  law  grew,  and  was  gradually 
framed  for  the  convenience  of  the  mercantile  community. 
When  this  law  was  thus  forming  it  was  common  to  re- 
ceive evidence,  either  of  witnesses  or  from  the  admissions 
of  counsel,  as  to  the  usages  of  merchants  and  the  course 
of  trade,  and  judgment  was  given  accordingly.^ 

The  power  to  receive  such  aid  is  still  vested  in  the 
Courts.  It  is  the  chief  merit  of  the  common  law  that  it  is 
flexible,  and  adapts  itself  to  varying  conditions  of  socie- 
ty.« 

This  distinguishing  characteristic  is  expressed  in  the 
maxim  already  quoted.  Of  its  applications  there  are 
many  illustrations.* 

^  Broom,  Legal  Maxims,  159. 

^  Miller  ?;.  Race,  i  Burr.  452  (1758);  Sedgwick  on  Construction  of 
Statutes,  pp.  3,  4. 

^  I  Kent  Comm.  472. 

*  It  was  well  expressed  by  Lord  Tenterden  in  Stone  v.  Marsh,  6 
Barn.  &  Cress.  551  (1827):  "The  rule  is  founded  on  a  principle  of 
public  policy,  and  where  the  public  policy  ceases  to  operate,  the  rule 
shall  cease  also." 

The  same  maxim  was  applied  to  the  rule  that  purchase  pendente  lite 
shall  not  change  the  rights  of  the  parties,  in  Parks  z;.  Jackson,  11  Wend. 
442  (1833) ;  and  to  the  rule  excluding  evidence  of  the  opinions  of  wit- 
nesses, in  DeWitt  v.  Barley,  9  N.  Y.  371  (1853);  and  to  the  rule  of 
equitable  conversion,  in  McCarthy  v.  Terry,  7  Lansing,  236  (1872), 

A  remarkable  instance  of  the  recognition  by  the  Supreme  Court  of 
the  change  in  the  policy  of  the  law  which  may  be  effected  by  local 
statutes  is  to  be  found  in  Nichols  v.  Eaton,  91    U.  S.  716,   726  (1875). 


348  THE   MODERN    LAW   OF   CARRIERS. 

The  questions  considered  in  this  section  have  arisen 
in  one  case  only,  and  in  that  the  Court  declined  to  pass 
upon  them/  The  commercial  community  have  generally 
acquiesced  in  the  justice  of  the  compromise  embodied 
in  the  Produce  Exchange  Bill  of  Lading.  But  if  litiga- 
tion should  arise  respecting  instruments  in  that  form,  the 
Court  before  which  it  comes  will  naturally  consider  what 
is  meant  by  the  expression  in  the  opinion  of  the  Supreme 
Court  in  ''  The  Montana :"  ''  against  the  policy  of  the 
law."  The  Court  certainly  did  not  mean  the  statute  law. 
It  meant  unwritten  law,  as  expounded  by  the  Courts. 
This  unwritten  law  is  always  subject  to  change  by  the 
Legislature,  and  has  in  many  instances  been  changed. 
The  old  English  statute  of  uses  changed  what  had  been 
up  to  that  time  the  unwritten  law  relating  to  the  effect  of 
particular  words  in  a  conveyance.  Recent  statutes  in 
various  States  have  changed  the  unwritten  law  as  declared 
by  the  Courts,  which  rejected  the  testimony  of  interested 
witnesses,  and  have  finally  admitted  the  testimony  even 
of  parties  to  the  record.  No  one  can  dispute  that  Congress 
could  lawfully  pass  an  act,  declaring  that  all  the  clauses 
in  the  bill  of  lading  in  question  should  be  valid.  But 
Congress  has  taken  no  action  in  the  premises.  In  the  ab- 
sence of  any  action  by  Congress,  it  would  seem  clear  that 
the  Legislature  of  the  State  of  New  York  has  the  power 
to  enact  that  such  a  bill  of  lading  should  be  valid  if  made 
within  that  State.'^ 


In  that  case  it  was  held  that  the  policy  of  the  English  law  as  to  the 
right  to  set  apart  property  for  the  use  of  another,  free  from  the  claims 
of  his  creditors,  had  been  changed  by  the  general  tenor  of  the  statutes 
of  various  States  of  the  Union,  limiting  the  common  law  rights  of  cred- 
itors, and  would  no  longer  be  enforced  by  American  Courts  of  Equi- 
ty- 

^  The  Britannic,  39  Fed.  Rep.  395  (1889).  This  case  was  compro- 
mised, after  the  decision  in  the  District  Court. 

^  In  Shelby  v.  Guy,  11  Wheat.  361  (1826),  the  Supreme  Court 
say :  "  That  the  statute  law  of  the  States  must  furnish  the  rule  of  de- 


PRODUCE   EXCHANGE    BILL   OF    LADING.  349 

It  is  true  the  Supreme  Court  has  refused  to  recognize 
as  authority  the  decisions  of  the  Courts  of  the  State  of 
New  York  on  this  subject,  but  that  is  on  the  ground  that 
these  Courts  did  not  correctly  declare  the  unwritten  mer- 
cantile law.  The  U.  S.  Supreme  Court  has  always  ad- 
mitted the  authority  of  State  statutes  relating  to  transac- 
tions between  merchants.  For  example,  State  statutes 
relating  to  the  negotiability  of  commercial  paper,  and  to  the 
days  of  grace,  and  other  like  statutes  relating  to  commer- 
cial contracts,  have  frequently  been  recognized  and  en- 
forced in  the  Federal  Courts.^ 

It  is  of  course  impossible  to  predict  whether  the  adop- 
tion of  this  clause  under  the  circumstances  stated,  will  be 
treated  by  American  Courts  either,  (i)  As  an  agreement 
for  a  valuable  consideration  to  waive  any  defense  that  the 
clause  in  question  is  against  the  policy  of  the  United 
States  of  America ;  or  (2)  Such  a  reference  to  the  English 
law  as  will  induce  the  Court  to  decide  the  questions  aris- 
ing under  it  by  the  law  of  England,  and  not  by  the  law 
of  America.  It  is,  however,  a  fact  worthy  of  notice  that 
the  validity  of  the  clause  has  been  generally  acquiesced  in 
by  shippers.  A  curious  illustration  of  this  is  to  be  found 
in  the  report  of  the  Committee  of  the  Liverpool  Sailing 
Ship  Owners'  Mutual  Indemnity  Association  for  the  year 
ending   February   20th,    1888.     This   states    as   follows : 


cision  to  this  Court,  as  far  as  they  comport  with  the  Constitution  of  the 
United  States,  in  all  cases  arising  within  the  respective  States,  is  a  po- 
sition that  no  one  doubts." 

1  Shaw  V.  Railroad  Co.,  loi  U.  S.  557  (1879),  (Bill  of  Lading). 
Scudder  v.  Union  Nat'l  Bank,  91  U.  S.  406,  (Bill  of  Exchange).  Wills 
V.  Claflin,  92  U.  S.  135  (1875),  (Promissory  Note).  In  Peik  v.  Chicago 
&  N.  W.  R.  Co.,  94  U.  S.  164  (1876),  the  Supreme  Court  sustained 
the  validity  of,  and  enforced  a  statute  of  Wisconsin,  relating  to  charges 
for  railway  transportation  from  places  within  that  State  to  places  with- 
out it.  In  Cooley  v.  Port  Wardens  of  Philadelphia,  12  How.  U.  S.  299 
(1851),  a  statute  of  Pennsylvania  imposing  half  pilotage  fees  upon  ves- 
sels sailing  to  or  from  Philadelphia,  was  held  to  be  constitutional,  sub- 
ject to  the  power  of  Congress  to  supersede  it. 


350        THE  MODERN  LAW  OF  CARRIERS. 

"  The  Committee  are  happy  to  be  able  to  report  that 
there  are  not  any  claims  pending  for  loss  of  or  damage  to 
cargo,  caused  by  improper  navigation.  This  circumstance 
is  no  doubt  due  to  the  almost  universal  insertion  of  the 
negligence  clause  in  contracts  of  affreightment." 

The  Ship  Owners  have  certainly  carried  out  in  good 
faith  the  agreement  on  their  part  not  to  claim  exemption 
for  losses  occasioned  by  their  own  neglect  or  fault.  They 
have  formed  in  England  several  associations  for  the 
mutual  insurance  of  vessels  by  their  owners,  against  cer- 
tain claims  not  covered  by  ordinary  policies  of  insurance. 
But  the  insurance  of  these  associations  does  not  extend  to 
loss  occasioned  by  the  actual  fault  or  privity  of  the  mem- 
ber suffering  the  loss. 

It  will  probably  be  found  that  the  various  commercial 
Exchanges  which  have  adopted  the  form  of  bill  of  lading 
already  referred  to  and  which  will  be  found  in  the  note  at 
the  end  of  this  chapter  ^  have  statutory  powers  similar  to 

*  New  York  Produce  Exchange  Steamship  Bill  of  Lading.  Received 
in  apparent  good  order  and  condition,  by  from  ,  to  be  trans- 

ported by  the  good  steamshhip  now  lying  at  the  port  of  and 

bound  for  ,  with  liberty  to  call  at  being  marked  and  num- 

bered as  per  margin  (weight,  quality,  contents  and  value  unknown),  and 
to  be  delivered  in  like  good  order  and  condition  at  the  port   of 
unto  ,  or  to  his  or  their  assigns,  he  or  they  paying  freight  on  the 

said  goods  on  delivery  at  the  rate  of  and  charges  as  per  margin. 

General  average  payable  according  to  York-Antwerp  rules. 

It  is  mutually  agreed  that  the  ship  shall  have  liberty  to  sail  without 
pilots ;  to  tow  and  assist  vessels  in  distress  ;  to  deviate  for  the  purpose 
of  saving  life  or  property  ;  to  convey  goods  in  lighters  to  and  from  the 
ship  at  the  risk  of  the  owners  of  the  goods  but  at  ship's  expense  ; 
and  in  case  the  ship  shall  put  into  a  port  of  refuge  for  repairs,  to  trans- 
mit the  goods  to  their  destination  by  any  other  steamship. 

It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable  for  loss 
or  damage  occasioned  by  the  perils  of  the  sea,  or  other  waters,  by  fire 
from  any  cause  on  land  or  on  water,  by  barratry  of  the  master  or  crew, 
by  enemies,  pirates  or  robbers,  by  arrest  and  restraint  of  princes,  rulers 
or  people,  by  explosion,  bursting  of  boilers,  breakage  of  shafts,  or  any 
latent  defect  in  hull  or  machinery,  by  collisions,  stranding,  or  other  ac- 
cidents of  navigation  (even  when  occasioned  by  the  negligence,  default, 
or  error  in  judgment  of  the  pilot,  master,  mariners  or  other  servants  of 


PRODUCE   EXCHANGE   BILL   OF   LADING.  35 1 

those  wliicli  have  beeu  conferred  upon  the  New  York  Produce 
Exchange  and  that  the  considerations  as  to  the  action  of 

the  ship  owner,  not  resulting,  however,  in  any  case,  from  want  of  due 
diligence  by  the  owners  of  the  ship  or  any  of  them,  or  by  the  ship's 
husband  or  manager)  ;  nor  for  decay,  putrefaction,  rust,  sweat,  change 
of  character,  drainage,  leakage,  breakage,  or  any  loss  or  damage  arising 
from  the  nature  of  the  goods  or  the  insufificiency  of  packages  ;  nor  for 
land  damages;  nor  for  the  obliteration  or  absence  of  marks  or  numbers; 
nor  for  any  loss  or  damage  caused  by  the  prolongation  of  the  voy- 
age. 

1.  It  is  also  mutually  agreed  that  the  carrier  shall  not  be  liable  for 
gold,  silver,  bullion,  specie,  documents,  jewelry,  pictures,  embroideries, 
works  of  art,  silks,  furs,  china,  porcelain,  watches,  clocks,  or  for  goods 
of  any  description  which  are  above  the  value  of  $500  per  package,  un- 
less bills  of  lading  are  signed  therefor,  with  the  value  therein  expressed 
and  a  special  agreement  is  made. 

2.  Also,  that  shippers  shall  be  liable  for  any  loss  or  damage  to  ship 
or  cargo  caused  by  inflammable,  explosive  or  dangerous  goods,  shipped 
without  full  disclosure  of  their  nature,  whether  such  shipper  be  princi- 
pal or  agent ;  and  such  goods  may  be  thrown  overboard  or  destroyed  at 
any  time  without  compensation. 

3.  Also,  that  the  carrier  shall  have  a  lien  on  the  goods  for  all  fines 
or  damages  which  the  ship  or  cargo  may  incur  or  suffer  by  reason  of  the 
incorrect  or  insufficient  marking  of  packages  or  description  of  their  con- 
tents. 

4.  Also,  that  in  case  the  ship  shall  be  prevented  from  reaching  her 
destination  by  quarantine,  the  carrier  may  discharge  the  goods  into 
any  depot  or  lazaretto,  and  such  discharge  shall  be  deemed  a  final  de- 
livery under  this  contract,  and  all  the  expenses  thereby  incurred  on  the 
goods  shall  be  a  lien  thereon. 

5.  Also,  that  if  the  goods  be  not  taken  by  the  consignee  within  such 
time  as  is  provided  by  the  regulations  of  the  port  of  discharge,  they  may 
be  stored  by  the  carrier  at  the  expense  and  risk  of  their  owners. 

6.  Also,  that  full  freight  is  payable  on  damaged  goods  ;  but  no 
freight  is  due  on  any  increase  in  bulk  or  weight  caused  by  the  absorp- 
tion of  water  during  the  voyage. 

7.  Also,  that  if  on  the  sale  of  the  goods  at  destination  for  freight 
and  charges,  the  proceeds  fail  to  cover  said  freight  and  charges,  the 
carrier  shall  be  entitled  to  recover  the  difference  from  the  shipper. 

8.  Also,  that  in  the  event  of  claims  for  short  delivery  when  the  ship 
reaches  her  destination,  the  price  shall  be  the  market  price  at  the  port 
of  destination  on  the  day  of  the  ship's  entry  at  the  custom  house,  less 
all  charges  saved. 

And  finally,  in  accepting  this  bill  of  lading,  the  shipper,  owner  and 
consignee  of  the  goods  agree  to  be  bound  by  all  of  its  stipulations,  excep- 
tions and  conditions,  whether  written  or  printed,  as  fully  as  if  they  were 
all  signed  by  such  shipper,  owner  or  consignee. 

In  witness  whereof,  the  master  or  agent  of  the  said  sliiphas  affirmed 


352  THE   MODERN   LAW   OF   CARRIERS. 

that  body  already  stated  apply  to  them  also.  In  any  case 
it  is  believed  that  the  Courts  will  be  reluctant  to  decide 
that  an  agreement  which  all  representative  commercial 
bodies  unite  in,  is  against  commercial  policy. 

to  three  bills  of  lading,  all  of  this  tenor  and  date,  drawn  as  "first," 
"  second  "  and  "  third,"  one  of  which  being  accomplished,  the  others  to 
stand  void. 

Dated  in  ,  this  day  of  i88     . 


INDEX. 


ABANDONED  VOYAGE. 

effect  on  contract  of  exemption,  93. 
duty  of  carrier,  309. 
ABANDONMENT  OF  INTEREST  in  ship  and  freight,  56,  70. 

not  barred  by  abandonment  to  underwriters,  72. 
ABROGATION  OF  LIABILITY. 

assent  of  shipper  necessary  to,  115. 

assent  of  shipper  to  bill  of  lading  may  be  presumed,  222,  227, 

et  seq. 
contract  necessary  for,  114. 

distinction  between  and  limitation  of  amount,  119. 
notice  of  not  sufficient,  221. 

See  Bill  of  Lading;  Leased  Line;  Limitation  by 
Contract;  Limitation  by  Statute  of  Ship- 
owner's Liability;  Negligence  Connecting 
Carrier;  Notice;  Rules  and  Regulations. 
ACCEPTING  GOODS. 

makes  carrier  liable  for  them,  93,  105,  iii. 
for  leased  line,  iii. 

reasons  for  not,  waived  by  acceptance,  237. 
ACT  OF  185 1,  limiting  liability  of  mariner. 

See  Statute. 
ACT  OF  CARRIER. 

error  in  giving  wrong  ticket,  165,  et  seq. 

omission  to  afford  facilities  for  compliance  with  its  rules,  220. 
cannot  abrogate  its  liability,  221. 

when  negligence  of  carrier  contributes  to  loss  from  excepted 
risk,  235,  299,  et  seq. 
ACT  OF  GOD. 

definition,  296,  298. 

when  synonomous  with  perils  of  seas,  &c.,  297,  303. 

loss  by  deviation  necessitated  by  defective   equipment  is  not, 

305- 
unusual  natural  phenomena  a  question  of  degree,  307. 
unusual  weather,  300. 
23 


354  INDEX. 

ACT  OF  OWNER. 

duty  of  disclosure  contents  package,  206,  et  seq. 

fraudulent  concealment  contents  package,  210,  et  seq. 

may  affect  liability,  215. 

owner's  right  to  expect  reasonable  diligence,  215. 

acting  under  direction  of  carrier,  215. 

his  presence  without  control  over  cargo,  215. 

knowing  defective  equipment  before  shipping,  216. 

knowing  defects  he  should  insist  on  remedy,  216. 

or  agent  in  course  of  employment,  217. 

act  of  consignee  considered  as,  217. 

contributing  to  loss,  218. 

smuggling,  219. 

See  Act  of  Shipper;  Illegal  Voyage. 
ACT  OF  RECEIVER  OR  ASSIGNEE,  112. 
ACT  OF  SHIPPER. 

contributory  negligence,  103,  112. 

fraudulent  concealment  contents  package,  210,  et  seq. 

mis?tatement  as  to  contents  package,  212. 

error  in  direction  of  goods,  213. 

negligence  must  be  contributory  to  exempt  carrier,  214. 
See  Act  of  Owner. 
ADMIRALTY. 

jurisdiction  on  lakes,  6. 

in  United  States,  i,  6. 

to  administer  Act  of  185 1,  7. 

when  proceedings  in  advisable,  51,  53. 
ADMISSIONS  IN  RECEIPT.     See  Evidence. 
ADVANCE  FREIGHT  and  passage  money,  60. 
AGENTS  OF  CARRIER. 

power  of.    See  Conduct  Ticket  Agent;  Employee. 
ALL  RAIL. 

meaning  of,  236. 
AMOUNT  OF  LIABILITY. 

limitations  as  to,  114. 
"ARTICLE"  IN  BILL  OF  LADING. 

meaning  of,  121. 
ASSENT  OF  SHIPPER  TO  LIMITATION. 

when  presumed,  222,  225. 

when  question  fact  for  jury,  223. 

when  necessary,  225,  et  seq.,  233, 

how  proved,  225,  et  seq. 


INDEX.  355 

ASSENT  OF  SHIPPER  TO  LIMITATION— continued. 

circumstantial  evidence  as  to,  225. 

express  receipts,  225,  264  n. 

shipper  presumed  to  read  receipt,  228,  229. 

signature  to  receipt  not  necessary,  229. 

presumed  from  previous  dealings,  229,  230. 

when  not  presumed  from  usage,  240. 

special  contract  prepared  by  him,  252. 

when  acceptance  of  receipt  constitutes,  231. 
ASSIGNEE  IN  BANKRUPTCY  OF  CARRIER. 

carrier  not  liable  for,  112. 
ASSIGNEE  OF  BILL  OF  LADING.     See  Bill  of  Lading. 
ASSIGNMENT  OF  PASSENGER  TICKET.     See  Ticket. 
ATTACHMENT. 

seizure  under ;  when  defence  to  carrier,  316,  ef  seq. 
AUTHORITY  OF  AGENT.    See  Conflict  of  Laws;  Conductor; 

Ticket  Agent. 
AUTHORITY  OF  MASTER.     See  Conflict  of  Laws. 
AUTHORITY  OF  SHIPPING  AGENT. 

after  shipment,  274  n.  i,  275  ;/.  i. 

to  make  terms  for  shipping,  274,  275. 

to  limit  liability,  274,  275. 

to  make  limitations  binding  on  owner;  rule  in  Illinois,   274, 

275- 
when  objections  to  his  act  are  to  be  made,  275. 
drayman,  275,  276. 

carrier's  agent  acting  for  shipper,  275  n.  2. 
drover,  276. 

when  agent  of  both  carrier  and  shipper,  276. 
as  to  connecting  lines.     See  Connecting  Carriers. 


BAGGAGE. 

under  the  statute,  limiting  shipowner's  liability,  24,  49. 

liability  for,  107. 

of  free  passenger,  107. 

consideration  for  carriage,  no. 

rules  respecting  custody,  161. 

not  placed  in  custody  of  carrier,  162. 

lien  on  for  fare,  177. 

carrying  merchandise  as  such,  177. 

merchandise  as,  carrier  may  charge  extra  rates,  210. 


35^  INDEX. 

B  A  G  G  A  G  E — continued. 

merchandise  as,  carrier  may  refuse,  210. 

if  received  knowingly,  carrier  responsible,  213. 
See  Value,  Disclosure  of. 
BAGGAGE  CAR.     See  Cars  Classified. 
BAGGAGE  CHECK. 

effect  of  as  evidence,  231. 

notice  printed  on,  264. 
BARGES,  CANAL  BOAT,  &c.,  38,  41. 

See  Statute. 
BARRATRY. 

definition  of,  322. 

whether  clause  excepting  is  valid,  320. 
See  Master  and  Mariner. 
BILL  OF  LADING. 

definition  of,  288. 

nature  of,  273. 

is  a  contract,  when,  222. 

shipper  bound  to  read,  222,  223. 

when  it  controls  printed  agreement,  224. 

affected  by  previous  contract,  224,  270,  272,  et  seq. 

assent  of  shipper  to,  225. 

admissions  in,  266,  et  seq.,  290. 

quasi- negotiable,  272,  273. 

acceptance  of  makes  binding,  273. 

when  contradicted  by  parol,  266,  267. 

printed  clauses  controlled  by  written,  278,  293  n. 

to  what  extent  cannot  be  contradicted  in  hands  of  assignee  for 
value,  290. 

notes  in  the  margin,  293,  294. 

as  adopted  by  Produce  Exchange,  343. 

See  Common  Exceptions;  Master  and  Mariners; 
Evidence;    Limitation    by   Contract;    Re- 
ceived IN  Good  Order. 
BILLS  OF  LADING,  DOMESTIC.     See  Express  Receipts. 
BOILER. 

explosion  of,  310. 
BREAKAGE. 

loss  from,  327  ?i.  3,  330. 
BUOY  SHIFTED,  302. 
BURDEN  OF  PROOF. 

as  to  usual  weather,  261. 


INDEX.  357 

BURDEN  OF  VKOOY— continued. 

as  to  a  paper  received  by  shipper  being  known  to  be  contract, 

225. 
of  special  contract  is  on  carrier,  251. 
rebutting  proof  of  special  contract,  251. 
fraud  and  duress  of  carrier  in  special  contract,  251. 
negligence  and  loss. 

prima  facie  proof  of  carrier's  liability,  251. 
rebutting  proof  of  liability,  251  «. 
carrier  must  account  for  loss  and  injury,  252,  258  n. 
loss  within  the  exception,  252,  254. 
proof  of  loss  changing  burden,  252,  258  «.,  327. 
between  connecting  carriers,  253  «.,  254  n. 
presumption  as  to  negligence,  255. 
■  presumption  as  to  negligence  when  loss  proved  to  be  with- 
in excepted  peril,  255,  256,  et  seq.,  327. 
presumption  when  goods  in  owner's  custody,  254  «. 
when  package  returned  by  connecting  carrier,  254  n. 
negligence  concurring  with  exempted  peril,  255. 
when  peril  clearly  excepted,  255. 
that  loss  inevitable,  255. 
when  amount  of  liability  limited,  256  fi. 
concurrent  negligence  and  excepted  peril,  257  «. 
if  contract  requires  shipper  to  prove  negligence,  256. 
excepted  peril  proved,  255,  ei  seq. 
negligence  not  presumed,  259,  et  seq. 
sickness  of  live  stock,  260. 

violence  of  weather,  circumstantial  evidence,  258,  et  seq. 
presumption,  grounding  on  a  dark  night,  260. 
presumption  unusual  occurrence,  260  n.  4. 
presumption  particular  circumstance,  258,  et  seq. 
that  negligence  did  not  contribute  to  loss,  262. 
delay  contributing  to  loss,  263. 

presumption  marine  and  land  disaster,  261,  262  n.  2. 
received  in  good  order,  291  n.  i. 
presumption— that  contents  as  well  as  package  in  good  order, 

291. 
shifted  by  words,  value  and  contents  unknown,  291,  et  seq. 
when  contents  said  to  be  "more  or  less,"  294  n.  i. 

CANAL  BOATS.     See  Barges. 
CAPTAIN.     See  Master  and  Mariners. 


358  INDEX. 

CARRIER. 

common  law  liability,  i. 

is  an  insurer,  i. 

whether  bound  to  transport  live  stock,  &c.,  105. 

obligation  of  not  dependent  on  contract,  106,  108. 

liability  for  goods  carried  by  express  companies,  11 1. 

liability  for  goods  on  leased  line,  iii. 

right  of  to  exclude  persons  hostile  in  business,  157. 

negligence  of  carrier's  employees,  82. 

when  carrier  considered  an  employee  or  agent  of  another,  89, 
277,  278  n.  2. 

liability  likened  to  that  of  innkeeper,  162. 

of  special  class  of  freight,  248. 

See  Act  of  Carrier;  Abrogation  of  Liability; 
Conflict  of  Laws;  Carrier  by  Sea;  Deliv- 
ery; Duty  of  Carrier;  Live  Stock;  Manner 
OF  Presenting  Claims;  Notice;  Rules  and 
Regulations  ;  Value,  Disclosure  of. 
CARRIER  BY  SEA. 

European  limitations  of  his  liability,  3. 

history  of  limitation  of  liability,  3. 

limited  liability  in  Holland,  5. 

limited  liability  in  England,  5,  7. 

limitation  of  liability  prior  to  statute,  12. 

limitation  of  liability  applies  to  contracts  as  well  as  torts,  20. 
CARS  CLASSIFIED. 

riding  on  freight  trains,  138. 

women's  car,  151,  157  n. 

women's  car;  man  entering  without  objection,  151. 

male  passengers  not  having  seats  may  occupy  ladies'  car,  151. 

right  to  equal  accommodation,  152. 

no  right  to  ride  on  freight  train,  153. 

no  right  to  ride  on  mail  or  baggage  car,  154. 

conductor  may  modify  rules  as  to,  157. 

passenger  must  follow  change  in  directions  as  to,  160. 

for  different  classes  of  stock  and  freight,  162. 
CAUSA  CAUSANS.     See  Efficient  Cause  and  Proximate  Cause. 
CAUSA   PROXIMA.      See    Efficient    Cause    and    Proximate 

Cause. 
CAUSE.     See  Efficient  Cause  and  Proximate  Cause. 
CHARTERER  OF  R.  R.  CAR,  105,  112. 
CHARTER  PARTY. 

when  controls  bill  of  lading,  266  n.  i. 


INDEX.  359 

CLASSIFIED  CARS.     See  Cars  Classified. 
COAL  DUST. 

when  a  peril  of  the  sea,  306  n.  4. 
C.  O.  D.,  120. 
COLLECTOR. 

carrier  acting  as,  233. 
COLLISION. 

statute  as  to  rule  of  road,  10. 

when  both  boats  to  blame;  limitation  by  statute  in  such  case, 

43- 
claim  of  injured  vessel,  whether  need  be  surrendered  under  the 

statute,  45. 

when  negligence  of  passenger  not  a  bar  to  action,  158. 

when  peril  of  sea,  301,  304  n.  2. 

when  excepted  in  bill  of  lading,  301. 

not  an  act  of  God  even  if  without  negligence,  301. 

when  proximate  cause  loss,  306. 
COLORED  PERSONS. 

rights  of  in  passenger  cars,  152. 
COMMERCE. 

protection  to,  2. 
COMMERCIAL  LAW. 

of  United  States,  200,  et  seq. 

See  Conflict  of  Laws;  Maritime  Law. 
COMMISSIONS  TO  CLERK  AND  MARSHAL,  74. 
COMMON  EXCEPTIONS. 

against  intrinsic  defects,  326. 

do  not  cover  negligence,  327. 

sweating,  327,  329. 

weather,  327  n.  2. 

breakage  or  drainage,  330. 

leakage,  328. 

leakage  average  or  ordinary,  327  n.  3,  330. 

stowage,  duty  as  to,  328. 

stowage,  usage  as  to,  245,  329. 

sinking,  330. 

rust,  330. 

See,  also,  Fire,  Barratry,  Master  and  Mariners, 
and  other  special  headings;  Limitation  by  Con- 
tract. 
COMMON  LAW. 

flexible  and  adaptable,  347. 

jurisdiction  in  cases  involving  limitation  liability,  51,  53. 


360  INDEX. 

COMMUTERS  AND  COMMUTATION  TICKETS,  142,  150,  173, 

174.  177- 
COMPETING  LINES. 

connections  with,  131. 
agents  of,  157. 
CONCEALMENT. 

contents  package,  210,  et  seq. 
CONCURRENT  NEGLIGENCE. 

See  Act   of  Carrier  ;    Act  of  Owner  ;    Act  of 
Shipper;  Delivery;  Negligence. 
CONDUCTOR. 

authority  of,  agreement  to  stop  at  unused  station,  159  ;/.  2. 
may  dispense  with  rules  in  particular  cases,  157. 
CONFLICT  OF  LAWS. 

States  composing  United  States  for  some  purposes  foreign  to 

each  other,  182. 
different  rulings  in  English.  Federal  and  State  courts,  181,  200, 

et  seq. 
law  place  of  contract,  183,  189  n. 

contract  valid  where  made  and  to  be  performed  valid  every- 
where, 183. 
law  place  performance,  185. 
illegal  contract,  186. 
contract  made  in  one  place  to  be  performed  in  another,  what 

law  governs,  185. 
rate  of  interest  according  to  either  place  allowed,  187. 
presumption  valid  contract  intended,  196. 
when  intention  of  parties  governs,  187. 
construction  of  contract  determined  by  law  of  place  where 

made,  187. 
law  of  flag,  188,  et  seq.,  203,  204. 
law  of   place  of   making  contract,  when  held  to  prevail  over 

law  of  flag,  189,  196  n. 
maritime  lien,  189  n.,  190  n. 
law  of  the  forum,  193. 
contract  to  be  performed  in  several  places— law  of  each  place 

regulates  performance  in  that  place,  183,  192,  195,  et  seq. 
torts,  194. 

comity  of  courts,  195. 
enforcement  of  foreign  law,  195. 
evidence  as  to  law  in  contemplation  of   parties,  198,  et  seq., 

349- 
presumption  as  to  same  subject,  184,  186,  187,  197. 


INDEX.  361 

CONFLICT  OF  Y.hSN'^— continued. 

enforcement  of  State  statutes  in  Federal  courts,  199. 

construction  State  statutes  by  State  courts,  followed  by  Fed- 
eral courts,  and  vice  versa,  199. 

when  Federal  courts  and  courts  of  sister  States  refuse  to  fol- 
low decisions  of  State  courts  upon  unwritten  law,  200, 
et  seq. 

commercial  law  of  United  States,  200,  et  seq. 

commercial  law  of  England,  203. 
CONNECTING  CARRIERS. 

when  entitled  to  limitation  liability,  35,  36. 

rules  of,  131. 

commercial  law  as  to,  201. 

first  carrier,  when  liable  only  as  forwarder,  223. 

delivery  to,  245,  254. 

first  carrier,  when  liable  as  carrier,  271  «. 

authority  of  first  line  to  contract  with  next,  276,  et  seq. 

exemption  of  first  in  bill  of  lading  when  extended  to  second 
and  following  carriers,  277,  278. 

exemption  extended  to  second  carrier,  when  no  through  con- 
tract, 277,  278. 

first  carrier  shipping  agent,  277,  280. 

liability  several,  278. 

notice  of  terms  of  second  carrier  given  to  first,  279. 

contract  between,  279. 

through  freight,  280,  281. 

through  contract,  280,  281. 

receipt  of  second  carrier,  when  shipper  bound  by,  280. 

when  last  carrier  agent  of  first,  278  n.  2,  282  n. 

first  carrier  liable  for  others,  when,  281  n.  i,  284. 

through  bill  of  lading,  last  carrier  protected  by,  though  only 
liable  on  his  own  line,  280,  281. 

delivery  to  second  carrier,  282,  et  seq. 

liability  of  second  carrier  to  first  for  injuries,  delay  in  receiv- 
ing, 282  n.  I. 

when  second  carrier  delays  or  neglects  to  receive,  283  n.  i. 

when  first  carrier  may  warehouse  goods,  283  n.  2,  284  n.  i. 

reasonable  time  to  deliver  to  second  carrier,  283  ;/.  i. 

receipt  of  goods  marked  beyond  line,  presumption  from, 
284  n.  2. 

obligations  to  carry  beyond  route,  284. 

carrier,  when  bound  to  carry  beyond  terminus,  285,  286. 


362  INDEX. 

CONNECTING  CARRIERS, -con/im/ecf. 
last  carrier,  who  is,  286  n. 

responsibility  of,  286  n. 
passenger,  authority  first  carrier  as  to,  286. 

contracts  between,  286. 
when  carrier  selected  to  receive  goods  is,  287. 

See  Delivery,  Forwarder;  Usage. 

CONNECTING  LINES.     See  Connecting  Carriers. 
CONSIDERATION. 

affecting  liability,  106. 

for  returning  bags  free,  no. 

affects  question  of  validity  of  special  contracts,  no. 

for  limitation  of  liability,  112,  223.  " 

for  change  in  contract,  272. 
CONSIGNOR.     See  Acts  of  Owner. 
CONSOLATO  DEL  MARE,  5 
CONSTITUTIONALITY  of  statutes  limiting  liability,  8.  51. 

of  rules  of  court  limiting  liability,  69. 
CONSTRUCTION  OF  CONTRACTS. 

to  be  construed  as  a  whole,  238,  293  «.,  295. 

negligence  must  be  expressed,  120,  234. 

against  carrier,  238,  318  n.  4. 

of  admissions  in  bill  of  lading,  290. 

when  construed  as  absolute  and  binding,  irrespective  of  ordi- 
nary exceptions,  303  «.  i,  313. 

favorably  to  shipper,  318  n.  4. 

particular  contracts,  288,  et  seq. 

against  fire,  324. 

"dangers"  same  as  "unavoidable  accident,"  325. 

against  negligence,  233,  et  seq. 

"article,"  121,  122. 

"invoice  value,"  122. 

See  Conflict  of  Laws;  Insurance. 
CONSTRUCTION  OF  STATUTES.     See  Statutes. 
CONTENTS  UNKNOWN.     See  Value  and  Contents  Unknown. 
CONTINENTAL  LAW. 

followed  by  United  States  in  maritime  matters,  11. 

as  to  contracts  of  exemption  for  consequences  negligence,  97. 
CONTINUOUS  TRIP. 

passenger  on  steamer  may  go  ashore,  147. 

"good  for  this  trip  only,"  147. 

coupon  tickets,  147,  148. 


INDEX.  363 

CONTINUOUS  T'SaV— continued. 

passenger  traveling  on  single-trip  ticket  cannot  stop  over,  145, 

146,  148. 
passenger  may  change  trains  if  the  one  he  is  on  does  not  stop 

at  station,  160. 
statute  of  Maine  respecting,  149. 
See  Ticket. 
CONTRACTS. 

See  Carrier;  Construction  of  Contracts;  Limi- 
tation BY  Contract  ;  Notice. 
CONTRIBUTORY  NEGLIGENCE, 
of  passenger,  158,  206,  et  seq. 
of  shipper,  103,  112,  208,  et  seq. 
of  carrier,  235,  262,  299. 

when  damage  will  be  apportioned  between  two  causes,  302. 
when  it  combines  with  excepted  peril  to  produce  loss,  235, 
299>  3i4>  318,  324,  327,  et  seq. 

See  Act  of  Carrier;   Act  of  Owner;    Act  of 
Shipper;  Delivery;  Negligence. 
CORPORATIONS. 

right  to  contract  out  of  their  own  State,  16,  182. 
extra  territorial  contracts  of,  182. 
foreign  carrier,  contracts  of,  182. 
incorporation  of,  under  general  statutes,  345. 


in  limited  liability  proceedings,  67. 


COSTS. 

CREW. 

liability  of,  not  limited  by  statute,  even  if  part  owner,  37. 
CUSTOM.     See  Usage. 


DAMAGES. 

apportionment  between  two  causes  of  injury,  302. 

measure  of.     See  Conflict  of  Laws. 
DANGERS.     See  Perils. 

DECAY  OF  CARGO. 

liability  for,  104. 

DECK  CARGO,  299  n.  i. 

DEFECTIVE  EQUIPMENT. 

damage  from.  25,  31,  50,  80,  343. 

known  to  shipper,  216,  217. 


364  INDEX. 

DEFECTIVE  EQUIFUENT— continued. 

position  Produce  Exchange  respecting,  343. 

See  Limitation  by  Statute  of  Ship  Owner's  Lia- 
bility. 

DEFECTS.     See  Intrinsic  Defects  ;  Received  in  Good  Order. 
DELAYS. 

in  carrying  live  stock,  102,  103. 

must  not  be  unreasonable,  215. 

combining  with  excepted  peril,  237  n.  2,  238  n.  2. 

in  transporting  after  delivery  to  carrier,  238. 

usage  as  to,  in  forwarding,  245. 

when  excusable  exonerates  carrier,  305. 

caused  by  low  water,  308  n.  3. 

loss  during,  309. 

not  ground  for  abandoning  voyage,  309. 

caused  by  strikes,  mobs,  etc.,  314,  315. 
DELIVERY. 

negligence  of  consignee,  217. 

manner  of,  should  be  according  to  usage  of  place  of  delivery, 
241,  244. 

usage  of  carrier,  244. 

not  complete  while  waiting  turn  to  discharge,  244. 

rule  at  common  law,  330. 

rule  in  Massachusetts,  331  «.  i. 

from  tackles  of  steamer,  333. 

carrier's  liability  after  notice  of  arrival  of  goods  and  readiness 
to  deliver,  334. 

when  ready  to  discharge,  334. 

notice  of  arrival,  ^^3^  334. 

receiving  from  ship's  side,  ;^;^;^. 

reasonable  opportunity  to  remove,  332  n.  2.,  334. 

to  wrong  person,  334. 

in  business  hours,  334  ».  5. 

contracts  against  giving  notice  of  arrival  of  goods,  334. 

place  of,  335. 

to  customs  officer,  335. 

must  be  according  to  bill  of  lading,  336. 

at  port,  337  n. 

to  bank,  337  n. 

at  intermediate  port,  337  n. 

to  assignee  bill  of  lading,  337  «. 

See  Connecting  Carrier  and  Usage. 


INDEX.  365 

DESERTION. 

not  a  peril  of  sea,  302. 
DETAINING  passenger  to  collect  fare,  176. 
DEVIATION  OF  CARRIER. 

how  it  affects  contract  of  limitation,  92,  et  seq.,  236,  342. 
"  all  rail  "  construed,  236. 
DILIGENCE. 

proof  of,  257. 

carrier  bound  to  take  precaution  against  perils  of  the  sea,  298, 
306,  307. 

against  violence,  314,  318. 
to  extricate  passengers  or  cargo  from  disaster,  307. 
See  Burden  of  Proof. 
DIRECTION. 

owner  assuming,  215,  if/  seq. 

owner  assuming,  has  right  to  expect  diligence  by  carrier,  215. 

DISCLOSURE. 

of  character  of  goods,  206,  et  seq. 

of  baggage  as  merchandise,  210. 
DISCLOSURE  OF  VALUE. 

See  Value,  Disclosure  of. 
DISORDERLY  PERSONS. 

duty  of  carrier  as  to,  154. 
DOMESTIC  BILLS  OF  LADING. 

See  Express  Receipt. 
DRAINAGE. 

loss  from,  330. 
DRAWING  room  cars,  151,  164. 
DROVER. 

authority  to  bind  the  owner,  276. 
DROVER'S  PASS,  88,  107,  265,  266. 
DUTY  OF  CARRIER. 

carrying  live  stock,  98,  et  seq. 

fragile  goods,  105. 

to  receive  and  carry  goods  within   its  ordinary  business,  105, 
106. 

as  to  colored  persons,  151,  152. 

as  to  disorderly  and  intoxicated  persons,  154,  155. 

to  furnish  suitable  accommodation  to  passenger  on  train,   155, 
161. 

not  required  to  carry  persons  injuring  its  own  business,  157. 

to  carry  in  reasonable  time,  215. 


366  INDEX. 

DUTY  OF  CARRIER— conii'mted. 

to  guard  against  ordinary  risks,  298,  300,  307. 
to  save  passengers  and  cargo  after  disaster,  307. 
when  voyage  interrupted,  309. 
to  save  life  before  property,  311. 
stowage,  245,  249,  328,  330. 

EARTHQUAKE,  299. 

EFFICIENT  CAUSE,  300,  304,  ef  se^. 

EJECTION  of  passenger,  170,  ef  se^. 

for  refusing  to  show  ticket,  141. 

when  fare  must  be  returned,  156. 

whether  must  be  at  station,  171,  172.   • 

whether  passenger  who  has  made  special  contract  has  right  to 
resist  eviction  in  violation  of  it,  164,  e^  seq. 

for  violation  of  carrier's  regulations,  170. 

whether  at  station,  171. 

at  reasonable  time  and  place,  173. 

with  violence,  172. 

refusal  to  pay  fare  by  person  in  charge,  173. 

damages  when  erroneous  but  in  good  faith,  173. 

while  train  moving,  173. 

commuter,  174,  176. 

his  right  to  explanation,  174. 

right  to  re-enter  cars,  174,  et  seq. 

payment  of  fare  on  re-entering  cars,  176. 

regard  must  be  had  for  his  health  and  condition,  176. 
EJECTION  OF  TRESPASSER. 

reasonable  regard  must  be  had  for  his  safety,  173. 
ELECTION  OF  REMEDIES. 

shipper  against  carrier  or  insurer,  340. 
EMPLOYEE  OF  CARRIER. 

contracts  exemption  for  negligence  of.     See  Negligence  of 
Carrier. 
EMPLOYEE  OF  SHIPPER. 

not  acting  in  course  of  employment,  217. 
ENGLISH  SHIP. 

included  within  U.  S.  Limited  Liability  Act  of  185 1,  18. 
ENGLISH  STATUTORY  LIMITATION. 

of  liability  of  carriers  by  sea,  7. 

different  from  U.  S.,  18. 
ENROLLED  and  licensed  vessels. 

U.  S.  Statute  limiting  liability  applies  to,  42. 


INDEX.  367 

EQUIPMENT. 

See    Limitation    by    Statute    of     Shipowner's 
Liability;  Privity;  Negligence  of  Carrier. 
EQUITY  jurisdiction  in  cases  limitation  liability,  53. 
ERROR  OF  CARRIER. 

See  Act  of  Carrier. 
ERROR  OF  JUDGMENT. 

is  not  negligence,  256,  310. 

ERROR  OF  OWNER. 

See  Act  of  Owner. 

ERROR  OF  SHIPPER. 

See  Act  of  Shipper. 

EUROPEAN  LAW  limiting  liability  of  carrier  by  sea  adopted  in  the 

U.  S.,  2,  7. 
EVIDENCE. 

rules  of,  in  Federal  Courts,  64. 

value  other  vessels,  64. 

foreign  law,  198,  et  seq. 

law  in  contemplation  parties,  198,  et  seq. 

preparation  of  contract  by  shipper,  proof  of  his  assent,  251, 

252. 
ticket  is  evidence  of  contract,  230,  231,  265. 
ticket  not  conclusive  evidence,  265. 
baggage  check  is.  264. 
as  to  making  contract  of  limitation,  24:. 
as  to  loss  being  caused  by  excepted  peril,  254. 
admissions  in  bill  of  lading  or  receipt  not  conclusive,  266,  2S9. 
"  said  to  contain"  on  receipt  evidence  of  value,  267. 
presumption  of  through  contract  from  marks  on  goods,  284 

n.  2. 
to  rebut  presumption  of  negligence  from  bill  of  lading,  289. 
circumstantial,  241,  259,  et  seq.,  292  n.  1. 
appearance  of  package,  260  n.,  289,  295. 
contradicting  admission  in  bill  of  lading,  292  n.  i. 

See   Assent    of    Shipper  ;    Burden    of    Proof  ; 
Parol    Evidence  ;    Presumption  ;    Received 
in  Good  Order. 
EXCURSION  TICKETS,  144,  148,  164,  169,  174. 
EXPLOSION  OF  BOILER,  310. 
EXPRESS  COMPANIES. 

negligence  as  between  them  and  railroad,  89,  90. 


;68 


INDEX. 


EXPRESS  RECEIPT. 

when  presumed  a  contract,  225. 
when  not  a  contract,  227. 
analogy  to  marine  bills  of  lading,  227. 
furnished  by  shipper,  230. 


FARE. 


FIRE. 


liability  carrier  to  gratuitous  passenger,  106. 

carrier's  liability  to  drovers  and  mail  clerks,  107,  108. 

returning  bags  free,  no  «.  2. 

agreement  to  pay,  implied,  106  n.  2, 112.^^  - 

must  be  reasonable,  136.  (;/t^L-(^-/<--^     / ^  4^ 

return  of  if  carrier  refuses  to  carry,  156.       _ -? 

reduction  in,  consideration  for  limitation,  106  n.  2  (p.  108), 
223. 

action  for  regulated  by  different  rules  from  actions  for  dama- 
ges, 311  n.  I. 

statute  exempting  ship-owner  from  loss  by,  22. 
when  may  be  pleaded  as  a  defense,  23. 
remedy  of  ship-owner  in  admiralty,  23,  28. 
does  not  apply  to  goods  on  wharf,  24. 
does  not  apply  to  trucks  or  horses  on  vessel,  24. 
baggage  of  passengers,  24. 
"  merchandise,"  24. 

ship-owner's  duty  in  general  average,  26. 
stipulation  against,  does  not  cover  negligence,  235. 
burden  of  proof  in  case  of,  256,  259  n. 
not  a  peril  of  sea,  302. 
carrier  liable  for  loss  by,  302,  324. 
caused  by  negligence,  324. 

contract  against,  given  limited  construction,  325. 
custom  affecting  liability  for,  326. 
See  Statute. 


204. 


FLAG. 

law  of  the,  1S8,  et  seq.,  20- 

FLOODS. 

Inland  navigation.  303  n.  i,  308  «.  i,  309. 
when  an  act  of  God,  309. 

FOREIGN  LAW. 

how  proved  that  contract  is  made  with  reference  to,  198,  199. 


INDEX.  369 

FOREIGN   SHIPS. 

Act  of  1 85 1,  and  U.  S.  Rev.  Stat,  applies  to,  16. 
FORESIGHT. 

See  Diligence. 
FORFEITURE  OF  TICKET. 

when  not  transferable,  150. 
commuter  refusing  to  show  ticket,  177. 
See  Ticket. 
FORWARDER. 

when  bill  of  lading  will  control  as  to  whether  carrier  is,  224. 
See  Connecting  Carrier. 
FRAGILE  ARTICLES,  105,  121. 

See  Intrinsic  Defects. 
FRAUD. 

in  personating  owner  of  non-transferable  ticket,  150. 

See  Value,  Disclosure  of;  and  Concealment. 
FREE  CARRIAGE. 

of  money,  248. 
FREE  PASS,  87,  88,  106,  et  seq. 

newsman,  106  n.  2  (p.  108). 

See  Ticket;  Drover's  Pass. 
FREE  PASSENGER. 

See  Free  Pass. 
FREIGHT. 

regulations  as  to  transportation,  162. 
FREIGHT  CARS. 

See  Cars  Classified. 
FREIGHT-MONEY. 

reduced,  as  consideration  for  exemption  shipper  must  have 

knowledge  of  exemption,  231. 
pro  rata,  309  n.  4. 
unearned  not  recoverable,  310. 

action  for,  different  from  action  for  damages,  311  n.  i. 
carrier  cannot  recover  when  goods  not  delivered  to  consignee, 
though  not  liable  for  loss,  326. 
See  Fare. 
FROST,  injury  from,  309. 

GAMBLERS. 

right  to  exclude  from  cars,  156. 
GENERAL  NOTICE. 

See  Notice. 
34 


370  INDEX. 

GOOD  ORDER. 

See  Burden  of  Proof;  Received  in  Good  Order. 
GOVERNMENT  intervention,  312,  313. 

See  Vis  major. 
GRATUITOUS  PASSENGER. 

See  Drover's  Pass;  Free  Pass. 
GROSS  NEGLIGENCE. 

See  Live  Stock  ;  Negligence. 
GUARANTY  of  Quantity, 
by  carrier,  295. 


HIGH  SEAS. 

territorial  status  of  vessel  on,  190,  et  seq.^  204. 
HOLLAND. 

limited  liability  of  ship-owner  in,  5 


ICE. 

injury  from,  309. 
ILLEGAL  CONTRACTS,  185. 
ILLEGAL  VOYAGE. 

carrier  not  liable,  218. 

Sunday,  219. 
IMMORAL  PURPOSE. 

right  to  exclude  person  entering  cars  for,  156. 
INEVITABLE  ACCIDENT,  303. 
See  Act  of  God. 
INJUNCTION. 

in  limited  liability  proceedings,  52,  68. 
INLAND  NAVIGATION. 

See  Statute. 
INSURANCE. 

whether  stipulation  should  include,  60. 

by  carrier,  224,  339  n.  2. 

construction  policy,  in  cases  theft,  robbery  and  piracy,  318. 

if  carrier  entitled  to,  when  insured  must  disclose  to  insurer, 

339'  340- 
form  of  clauses  in  bill  of  lading,  337. 
carrier  may  contract  for  benefit  of  insurance,  339. 

when  not,  338. 
carrier's  right  to  does  not  compel  shipper  to  sue  on  policy, 

340- 


INDEX.  371 

INSURANCE— confined. 

shippers'  primary  remedy  is  against  carrier  when  carrier  con- 
tracts for  benefit  of  insurance,  340. 
underwriter  subrogated  to  rights  of  shipper,  338. 
when  underwriter's  rights  cannot  be  defeated,  339. 
subrogation    of    underwriter,  theory  of   rule  and  limitation, 

339- 
special  contracts,  340,  ef  seq. 

contract  that  carrier  shall  not  be  liable  for  insurable  risk,  341, 

et  seq. 
contract  by  carrier  to  insure,  342. 
See  Fire. 
INSURER. 

carrier  is,  i. 

who  pays  loss  has  no  greater  right  than  insured,  47. 
right  of  carrier  as  insurer  to  know  value  of  freight  and  bag- 
gage. 

See  Value,  Disclosure  of. 
INSURRECTION. 

See  Vis  major. 
INTENTION. 

of  person  breaking  rules,  150. 
INTEREST. 

on  value  of  ship  when  included  in  stipulation,  70. 
when  agreement  may  be  made  for  legal  rate  in  either  of  two 
jurisdictions,  187. 
INTOXICATED  PERSONS. 

duty  of  carrier  as  to,  154. 
INTRINSIC  defects  of  cargo. 

perishable  goods,  carrier's  liability,  97,  et  seq. 

live  stock,  98. 

perishable,  to  be  forwarded  without  delay,  104. 

carrier  to  take  notice  of,  104. 

fragile  articles,  104,  275  «.  2. 

See  Common  Exceptions. 
INVOICE  VALUE. 

See  Value. 


JETTISON. 

when  loss  from  excepted,  299. 
JETTISONED  CARGO. 

freight  on,  310. 


372  INDEX. 

JEWELRY,  47,  121. 
JUDGMENT. 

error  in  not  negligerce,  256,  310,  311. 


LADIES'  CAR. 

See  Cars  Classified. 
LAKES  AND  RIVERS. 

damage  on,  what  is,  303. 
LAND,  part  of  carriage  on. 

See  Statute  Limiting  Liability  of  Ship-owner. 
LATENT  DEFECTS. 

See  Received  in  Good  Order. 
LAW. 

See  Statute;  Limitation  by  Statute,  and  Limi- 
tation BY  Statute  of  Ship-owner's  Liabil- 
ity. 
LAW  MERCHANT. 

general  in  U.  S.,  13,  et  seq. 
how  proved,  14,  15,  347. 
origin  and  growth  of,  347. 
LAW  of  the  Flag,  188,  et  seq.,  203,  204. 
LEAKAGE. 

when  carrier  is  liable  for,  328. 
when  excepted,  310,  326 

See  Common  Exceptions. 
LEASED  LINE. 

liability  on,  in 
LEGISLATURE. 

delegation  of  power  to  make  rules,  345. 
LIABILITY  OF  CARRIER. 

See  Assignee  in  Bankruptcy  of  Carrier;  Car- 
rier; Connecting  Carrier;  Delivery;  Duty 
OF  Carrier  ;  Leased  Line  ;  Limitation  by 
Contract;  Limitation  by  Statute  of  Ship- 
owner's Liability  ;  Receiver  of  Carrier. 
LIBEL. 

See    Limitation    by    Statute    of    Ship-owner's 
Liability. 
LIEN. 

for  repairs  and  supplies  to  vessel,  11. 
on  baggage,  177. 


INDEX.  373 

LIFE. 

should  be  saved  before  property,  311. 
LIGHTERS. 

See  Barges. 
LIMITATION  OF  LIABILITY. 

See  Abrogation  of  Liability;  Carrier;  Car- 
rier BY  Sea;  Conflict  of  Laws;  Connecting 
Carrier;  Delivery;  Free  Pass;  Leased  Line; 
Limitation  by  Contract;  Limitation  by 
Statute;  Limitation  by  Statute  of  Ship- 
owner's Liability;  Live  Stock;  Manner  of 
Presenting  Claims;  Notice;  Rules  and 
Regulations;  Statute;  Ticket;  Value. 
LIMITATION  BY  CONTRACT. 

liability  as  affected  by  Act  of  185 1,  20. 

in  general,  75 . 

mode  of  transportation  fixed  by  contract  must  be  followed,  93. 

live  stock,  97. 

might  formerly  be  made  by  notice,  not  now,  75,  114. 

notice  of  generally  held  valid  if  assented  to,  115. 

generally  held  valid  as  to  amount,  115. 

in  what  jurisdictions  limitations  as  to  amount  not  valid  in  case 

of  negligence,  117,  et  seq. 
invoice  value,  118. 

if  intended  to  cover  negligence  must  be  explicit,  120. 
prohibited  contracts,  185. 
how  it  may  be  made,  220,  et  seq. 
affected  by  consideration,  224. 
reasonableness  not  a  test,  232. 
what  forms  part  of  contract,  263,  et  seq. 

must  (expressly  or  by  implication)  be  made  before  or  at  ship- 
ment, 270,  et  seq. 
signature  of  bill  of  lading  by  shipper,  273. 

See  Abrogation  of  Liability  ;  Bill  of  Lading  ; 
Carrier;  Connecting  Carrier;  Delivery; 
Evidence  ;  Leased  Line  ;  Limitation  by 
Statute  ;  Limitation  by  Statute  of  Ship- 
owner's Liability;  Live  Stock;  Manner 
OF  Presenting  Claim;  Negligence;  Notice; 
Rules  and  Regulations;  Statutes;  Ticket; 
Time  of  Making  Contract  ;  Time  of  Pre- 
senting Claim;  and  Value,  Disclosure  of. 


374  INDEX. 

LIMITATION  BY  NOTICE. 
See  Notice. 
LIMITATION  BY  STATUTE. 

statutes  of    States  affecting  right  to  contract  against  negli- 
gence, 90. 

statute  prohibiting  limitation  of  tickets  as  to  time,  143. 

as  to  breaking  journey,  149. 

as  to  amount  liability,  193. 

State  statutes  in  Federal  Courts,  199. 

Utah  statute  as  to  burden  of  proof,  255  n.  2,  256. 

construction  of  statutes  prohibiting  limitation  of  liability,  339. 

LIMITATION  BY  STATUTE  OF  SHIP-OWNER'S  LIABILITY. 

Ordonnance  de  la  Marine,  3. 

French  rule  as  to  owner's  negligence,  34. 

Consolato  del  Mare,  5 . 

English  statute,  7. 

considered  a  municipal  regulation,  11. 

extent  of  limitation  under,  18. 

negligence  in  equipment,  34. 
U.  S.  Act  of  1851,  U.  S.  R.  S.  (§§  4282-4289),  22,  51. 

admiralty  has  jurisdiction  to  administer,  7. 

constitutionality  of,  8. 

adopts  continental  maritime  law,  9,  15. 

interpreted  by  continental  rather  than  English  law,  8. 

applies  to  foreign  vessels,  15,  18. 

application  to  foreign  vessels  good  policy,  not  comity,  19. 

original  Revised  Statutes  (§4282,^/^^^.)  do  not  change 
Act  of  1851,  21. 

to  be  liberally  construed,  21,  22. 
U.  S.  Rev.  Stat.  (§  4282),  loss  by  fire,  22. 

may  be  pleaded  as  a  defense,  23. 

remedy  of  ship-owner  in  admiralty,  23,  28. 

does  not  apply  to  goods  on  wharf,  24. 

does  not  apply  to  trucks  and  horses  on  ferry-boat,  24. 

baggage  of  passengers  lost,  24. 

"merchandise,"  25. 

meaning  of  "neglect  of  owner,"  25. 

ship-owner's  duty  in  general  average,  26. 
U.  S.  Rev.  Stat.  (§  4283)  limits  liability  to  value  of  vessel  and 
freight,  26. 

applies  to  personal  injuries,  26. 

does  not  apply  to  losses  on  land,  27, 


INDEX.  375 

LIMITATION  BY  STATUTE,  'ETC— continued. 

injury  to  another  vessel,  27. 

privity  or  knowledge  of  owner,  26,  28,  30,  et  seq. 

insufificient  equipment,  31,  et  seq. 

acts  of  crew,  35. 

See  Negligence. 
U.  S.  Rev.  Stat.  (§  4286);  charterer,  when  deemed  owner,  35. 

connecting  ship  not  chartered,  35. 
U.  S.  Rev.  Stat.  (§  4287),  liability  of  master  or  seaman,  37. 

remedies  against  crew  preserved,  37. 
U.  S.  Rev.  Stat.  (§  4289),  to  what  vessels  the  limitation  ap- 
plies, 38. 

barges,  lighters,  &c.,  38. 

inland  navigation,  39,  41. 

Act  of  1884,  as  to  part  owner,  39. 

amendment  of  1886,  41. 

separate  losses  on  same  voyage,  40. 

when  part  of  carriage  is  on  land,  42. 

losses  on  the  last  voyage  only,  42. 

effect  of  bottomry  bond  on,  43. 

applies  to  vessel  in  wrecked  condition,  43. 

cases  of  collision,  43. 

ship-owner  need  not  surrender  his  cargo,  44. 

all  questions  may  be  tried  in  a  common  law  court,  51. 
U.  S.  Rev.  Stat.  (§  4281)  limits  liability  for  valuables,  47. 

carrier  not  liable  for  negligence  under,  49. 
U.  S.  Rev.  Stat.  (§  4493),  liability  of  carrier  for  damages  sus- 
tained by  passenger  or  his  baggage,  50. 
LIVE  STOCK. 

whether  carrier  bound  to  carry,  98,  105. 
gross  negligence  in  transporting,  99. 
carrier's  liability  for,  99. 
duty  of  carrier  to  feed  and  water,  loi. 
special  contracts  for  carrying,  102. 
construction  of  contracts  as  to,  102,  238. 
reduced  freight  on,  108  n.  i. 
drovers'  passes,  107,  108. 

See  Intrinsic  Defects  of  Cargo,  and  Negligence. 
LOSS  OF  TICKET,  139. 
LOW  WATER. 

whether  a  peril  of  navigation,  308. 

delay  and  loss,  308,  309. 

as  affecting  right  of  reshipment,  342. 


37^  inde:x. 

MAIL  AGENTS,  107. 
MAIL  CARS. 

carrier's  right  to  exclude  from,  154. 
MALA  PER  SE,  185. 

MALA  PROHIBITA,  185. 
MANAGEMENT  OF  SHIP. 

definition  of,  324. 
MANNER  OF  PRESENTING  CLAIM. 

limitation  lawful,  125. 

written  notice,  126. 

at  carrier's  ofifice,  127. 

connecting  lines,  127. 

with  bill  of  lading  attached,  127. 
MARINE  TORTS. 

See  Conflict  of  Laws. 
MARINERS. 

definition  of,  323,  et  seq. 

See  Master  and  Mariners. 
MARITIME  LAW. 

to  what  extent  adopted  in  U.  S.,  9  «.  13. 
MARITIME  LIENS,  189,  190  n. 
MASTER  AND  MARINERS. 

liability  of,  not  limited  by  U.  S.  statute,  even  if  part  owner, 

37- 
authority  of  master,  188  ;/.,  189,  190,  310. 
weight  to  be  given  to  judgment  of,  310. 
validity  of  contracts  against  negligence  of,  319. 
negligence  of,  rule  in  Federal  Courts,  319. 
torts  of,  contracts  against,  320. 
torts  of,  rule  not  the  same  as  to  negligence,  320. 
barratry  of,  320,  322. 
barratry  common  law  rule,  322. 
definition  of  mariners,  323,  et  seq. 
any  act  of,  includes  theft,  324. 
"loss  by  robbers"  does  not  include  mariners,  318. 
See  Barratry. 
MAXIMS. 

cessante  ratione,  cessat  et  ipsa  lex,  347. 

ex  turpi  contractu  non  oritur  actio,  195. 

in  pari  delicto  potior  est  conditio  defendentis^  219. 

stare  decisis,  199  n.  2. 

ut  res  niagis  valeat  quam  pereat,  197. 


INDEX.  377 

MEMORANDUM  ARTICLES, 
policy  of  insurance,  ii. 
MERCANTILE  LAW. 

See  Law  Merchant. 
MERCHANDISE  AS  BAaOAGE. 

See  Baggage. 
MILITARY  AUTHORITIES. 

liability  of  carrier  for  loss  when  road  under  control  of,  in. 
MOBS. 

See  Vis  Major. 
MODE  OF  TRANSPORTATION. 

carrier's  stipulation  as  to,  must  be  kept,  92,  et  seg.,  236,  342. 
MONEY,  as  baggage. 

See  Value,  Disclosure  of. 


NAVIGATION. 

dangers  of,  definition,  308. 
obstructions  to,  309. 
NEGLIGENCE  OF  CARRIER,  what  it  consists  in, 

failing  to  provide  servant  with  safe  machinery,  30. 

failing  to  equip  as  required  by  law,  25,  31,  50,  80,  103,  216, 

324- 
failing  to  equip  vessel,  English  rule,  34,  81. 

French  rule,  34. 
when  it  occurs  with  his  "privity  or  knowledge,"  32,  81. 
contract  against  personal  negligence  void,  77. 
when  negligence  of  agent  of  corporation  is  personal  negligence 

of  corporation,  78. 
when  employees  do  not  use  means  provided,  81. 
contract  of  master  not  to  be  liable  to  servant  for  negligence  of 

fellow-servant,  85. 
distinction  between  negligence  of  carrier  and  of  carrier's  em- 
ployee, 83. 
contracts  against  negligence  of  employee. 

valid  in  England,  86. 

and  on  Continent,  97. 

invalid  in  Federal  Courts,  82,  319. 

invalid  in  some  States,  83,  85. 

valid  in  other  States,  86. 

affected  by  consideration,  88,  106,  et  seq. 

gross  and  ordinary  negligence,  91,  no. 


37^  INDEX. 

NEGLIGENCE  OF  CARRIER— continued. 

to  sustain,  carrier  must  perform  his  part,  92. 

validity  affected  by  public  policy,  95, 

validity  of,  maintained,  95. 

in  drover's  pass,  107. 
limitations  as  to  amount,  114,  et  seq. 
must  be  express,  120,  234,  324,  334  n.  2. 
liability  of  express  company  for  negligence  of  railroad,  89. 
when  carrier  is  a  receiver  or  assignee  in  bankruptcy,  112. 
defective  equipment  known  to  shipper,  216. 
construction  contracts  relating  to  negligence,  233,  et  seq. 
evidence  as  to  loss,  254. 
evidence  of  injury  from,  292  n.  i,  295. 
in  collision,  301. 

compared  with  error  of  judgment,  254,  310. 
must  be  diligence  and  skill  to  prevent  loss,  257  «.,  314. 
never  presumed,  260,  et  seq. 
when  inferred  from  circumstances,  260,  261,  295. 
after  disaster,  307. 
a  question  of  fact,  261,  329. 
in  stowage.     See  Common  Exceptions;  Stowage. 

See  Act  of  Carrier;  Act  of  Owner;  Act  of 
Shipper;  Burden  of  Proof  ;  Contributory 
Negligence;  Efficient  Cause  ;  Live  Stock; 
Limitation  by  Contract;  Limitation  by 
Statute  of  Ship-owner's  Liability;  Master 
AND  Mariner;  Proximate  Cause. 
NOTICE. 

to  claimants,  how  given,  56. 

limitation  of  amount  by.  75,  114. 

of  value,  what  is  sufficient,  120. 

when  good  limitation  of  time,  143. 

not  to  ride  on  platform,  155. 

of  rules  and  regulations,  when  necessary,  177,  et  seq. 

what  constitutes,  179. 

when  must  be  given,  of  change  in  rules,  180. 

when  becomes  a  contract,  231,  233. 

must  be  brought  home  to  shipper,  231,  233. 

when  not  contract,  231,  263. 

public,  posted  in  office,  232. 

to  shipper  of  inability  to  transport,  257  «.  3. 

usage  as  evidence  of  assent  to,  242,  243. 


INDEX.  379 

NOTIC  Y.— continued. 

when  treated  as  part  of  contract,  263,  et  seq. 

printed  on  bill  of  lading  or  receipt,  when  part  of  contract,  263, 

et  seq.,  273  n.  i. 
posted  on  steamboat,  264. 
on  baggage  check,  264. 
printed  on  passenger  ticket,  264,  265,  272. 
incorporated  in  receipt,  264. 
shipper  relying  on,  is  bound  by  as  a  whole,  266. 
between  connecting  carriers,  279. 

See  Delivery  ;    Limitation  by  Contract  ;    and 
Rules  and  Regulations. 


OBLIGATION  OF  CARRIER.     See  Duty;  Chartered  Car. 
ORDONNANCE  JDE  LA  MARINE,  4. 
OWNER'S  RISK,  234  «.,  258  «.,  280. 


PARLOR  CARS,  151. 

See  Ticket. 
PAROL  EVIDENCE. 

to  contradict  time  limit  of  ticket,  144. 
leave  to  stop  over,  148. 
as  to  assent  of  shipper  to  limit  action,  229. 
of  contract  of  affreightment  in  absence  of  writing,  251. 
of  usage  to  modify  bill  of  lading,  239,  240. 
of  usage.     See  Usage. 
to  contradict  receipt,  267,  et  seq. 
that  value  stated  in  receipt  was  too  small,  267, 
to  contradict  contract  in  receipt  or  bill  of  lading,  267,  268. 
to  explain  bill  of  lading,  269. 
of  modification  or  waiver,  267,  268. 
to  vary  legal  implication  from  writing,  268. 
shipper's  consent  to  manner  of  navigation,  267. 
collateral  contract,  269. 
consideration  for  change  in  contract,  272. 
to  contradict  "received  in  good  order,"  288,  290. 
of  circulars,  advertisements,  etc.,  to  modify  contract,  303. 
degree  of  certainty  necessary  to  contradict  receipt,  289. 
PART  OWNERS  OF  SHIP. 

liability  under  statute,  37. 
under  Act  of  1884,  39. 


380  INDEX. 

PASS.     See  Drover's  Pass  ;  Free  Passenger;  Ticket. 
PASSENGERS. 

another  traveling  under  non-transferrable  pass  cannot  recover 
for  injuries,  150. 

entitled  to  seat,  151,  159. 

right  to  equal  accommodations,  152,  153. 

whom  carrier  may  refuse  to  carry,  155,  157. 

remedy  for  violation  special  contract  with  carrier's  agent,  164, 
et  seq. 

to  be  saved  before  goods,  311. 

See  Ejection  of  Passenger;    Free  Pass;    Free 
Passenger. 
PERILS  OF  NAVIGATION.     See  Perils  of  Sea. 
PERILS  OF  SEA,  &c. 

what  are,  296,  298,  et  seq. 

when  carrier  liable  for,  297,  et  seq. 

ordinary,  carrier  must  guard  against,  298,  307. 

rivers,  299,  304. 

leakage,  327,  328. 

coal  dust,  306  n.  4. 

pirates,  317. 

when  negligence  of  carrier  contributes,  327. 

proof  of  loss  by,  252,  254. 

See  Act  of  God  ;  Contributory  Negligence. 
PERISHABLE  GOODS.     See  Intrinsic  Defects  of  Cargo. 
PICTURES. 

statute  as  to,  48. 
PIRACY. 

liability  owner  for,  320  n.  3. 
PIRATES. 

not  "public  enemy,"'  317. 

insurance  against  loss  through,  318. 
PLATFORM. 

riding  on,  155. 
PLEADING. 

in  admiralty  proceedings  to  limit  liability,  55,  et  seq. 

answer  in  admiralty,  66. 

defense  under  clause  as  to  time  of  suit,  ^27  n.  4. 

rules  of  carrier  must  be  pleaded,  131. 
POLICY  OF  THE  LAW,  95,  181. 
PRESUMPTION. 

as  to  law  with  reference  to  which  contract  made,  184,  186,  187, 
197. 


INDKX.  381 

FRESU  MOTION— :onh'nued.  '\ 

that  valid  contract  intended,  196. 
See  Burden  of  Proof. 
PRIVITY  OF  KNOWLEDGE. 

of  owner,  26,  32,  ei  seq.,  51. 
of  shipper,  216. 

See  Limitation  by  Statute  of  Ship-owner's  Lia- 
bility; Negligence  OF  Carrier. 
PROCEDURE  under  U.  S.  Rev.  St.  §§  4282-4289. 

when  owner  may  plead  statute  without  admiralty  proceedings, 

53- 
when  must  file  libel,  53. 
where  had.  53. 

regulated  by  rules  of  court,  54. 
when  vessel  totally  lost,  54. 
what  libel  must  contain,  55,  ^^  seq. 
question  of  owner's  liability  may  be  determined  in,  55. 
owner,  denying  all  liability,  should  plead  facts  in  detail,  56. 
is  primarily  in  rem.,  57. 
who  entitled  to  notice  of,  57. 
stipulation  for  value  when  should  be  offered,  59. 
advantage  over  surrender  of  wreck,  56. 
amount  of,  how  determined,  57. 
who  entitled  to  be  heard  as  to  amount,  57. 
notice  of  hearing  served  on  attorney,  58. 
does  not  cover  insurance  on  vessel,  60. 
whether  it  should  include  advance  freight  and  pas- 
sage money,  60. 
at  what  time  value  taken,  7,  62. 
evidence  as  to  value,  64. 
"  freight  "  means  net  freighf,  64. 
filing  commissioners  report  as  to  value  and  excep- 
tions, 65. 
monition  to  present  claims,  65. 
hearing  on  the  merits,  66. 
how  objections  to  libel  should  be  taken,  dd. 
report  of  commissioner  on  claims,  67. 
who  entitled  to  share  in  fund,  67. 
costs  to  successful  claimants,  67. 
exception  to  report  on  claims,  68. 
injunction  against  actions  at  law  desirable,  68. 
interest  on  value  of  ship,  70. 
surrender  of  ship  or  freight,  when  to  be  made,  70. 


382  INDEX. 

VROCEDVRE—confinued. 

not  necessary  when  all  injured  parties  are  before  admiralty 

court  in  one  cause,  71. 
if  not  begun  before  judgment  for  damages,  latter  is  binding, 

70. 
jurisdiction  not  ousted  by  excess  of  value  over  claims,  73. 
citizenship  of  trustee,  73. 

PROCESS  LEGAL. 

when  defense  to  carriers,  316,  et  seq. 
PRODUCE  EXCHANGE. 

purposes  of  incorporation,  343. 

legal  character  of  its  action,  344,  et  seq. 
PRODUCE  EXCHANGE  Bill  of  Lading. 

history  of  negotiations  that  resulted  in  adoption  of,  343,  et  seq, 

terms  of,  generally  carried  out  in  good  faith,  349,  et  seq. 

form  of,  350  «.  I. 
PRO  RATA  freight,  309  n.  4. 
PROXIMA  CAUSA. 

See  Proximate  Cause. 
PROXIMATE  CAUSE. 

contributory  negligence  of  consignee,  218. 

in  general,  237,  300,  et  seq.,  304. 

in  insurance,  304,  305. 

proof  that  negligence  is,  300,  301,  304,  et  seq. 

negligence  concurring  with  public  enemy,  314. 

burden  of  proof  in  case  concurrent  negligence. 
See  Burden  of  Proof. 

PUBLIC  ENEMIES. 

Confederate  troops  and  cruisers,  311,  314  n.  i. 
Confederate  Government,  311. 
Carrier's  Government,  312  n.  i,  313. 
marauding  Indians,  312. 
loss  arising  through,  311,  et  seq. 

contract  to  be  liable  for,  not  implied  from  agreement  to  trans- 
port within  specific  time,  313. 
whether  pirates  are  or  are  not,  312  n.  i,  317. 

PUBLIC  POLICY. 

how  far  courts  may  consider,  95,  346. 

extent  to  which  courts  have  held  negligence  contracts||  invalid 

as  against,  346. 
change  in,  how  shown,  347. 


INDEX.  385 


QUANTITY  GUARANTEED,  295. 
QUARANTINE  REGULATIONS, 
effect  on  liability,  313. 


RATS,  300. 
REASONABLE 

rules  and  regulations — what  are,  130. 

when  contract  need  not  be,  232. 
REASONABLENESS  RULES  AND    REGULATIONS. 

when  question  law  and  when  of  fact,  132,  158. 
REBUTTING  prima  facie  case. 

See  Burden  of  Proof. 
RECEIPT. 

notice  printed  on  back,  264. 

temporary  shipping,  273. 

in  bill  of  lading,  how  far  binding  in  favor  of  assignee,  290 

See  Bill  of  Lading;  Limitation  by  Contract; 
Notice;  Received  in  Good  Order. 
"RECEIVED  IN  GOOD  ORDER." 

only  prima  facie  evidence  of  fact,  266,  288. 

contradicted  by  appearance  of  package,  289. 

refers  only  to  apparent  condition,  290. 

contradicting  bill  lading  in  hands  of  assignee,  290. 

when  it  relates  only  to  outside  of  package,  291,  292. 

latent  defect,  328. 

See  Burden   of    Proof  ;  Evidence  ;  Value    and 
Contents   Unknown. 
RECEIVER  OR  ASSIGNEE  in  bankruptcy  of  carrier. 

liability  of,  112. 
RE-SHIPMENT. 

construction  of  clause  concerning,  342. 
RIOTS. 

See  Vis  major. 
RISKS  AND  PERILS. 

See  Perils  of  Sea,  &c. 
RISK  OF  OWNER,  234  n.  1. 
ROBBERS. 

meaning  of  word  in  bill  of  lading,  318. 

insurance  against  loss  through,  318. 

exception  against  loss  by  does  not  include  the  case  of  contrib- 
utory negligence,  318. 


384  INDEX. 

RULES  AND  REGULATIONS, 
as  to  live  stock,  103, 
as  to  value,  119. 

passenger  or  shipper  must  have  notice  of,  115,  119. 
right  to  notice  of  affected  by  custom,  179. 
shipper  must  take  notice  of  certain,  130. 
must  be  reasonable,  130. 
burden  of  showing  reasonableness,  131. 
when  this  is  question  law  and  when  of  fact,  132. 
must  be  consistent  with  duty  as  carrier,  131. 
of  connecting  carrier,  131. 
carrier  must  prove,  133. 
carrier  of  live  stock,  103. 
ticket;  purchase  before  entering  car,  132. 

extra  fare  if  without,  133. 

reduced  fare  to  those  buying,  134. 

if  not  bought  extra  fare  not  exceeding  legal  rate,  134. 

to  ride  on  freight  train,  138. 
ticket  office — duty  to  keep  open,  134,  et  seq. 
enforcement  of, 

forfeiture  of  ticket,  177. 

non-transferable  ticket,  149,  150. 

detaining  passenger,  140,  176. 

classified  cars,  151,  et  seq. 

removal  of  passenger  from  train,  170,  et  seq. 

lien  on  baggage,  177. 

refusal  to  sell  ticket,  177. 

requiring  contents  of  trunk  to  be  stated  in  writing,  177. 
intent  of  passenger  breaking,  150. 
if  not  seat  for  passenger  in  car,  151. 
disobedience  when  not  bar  to  action,  158. 
reasonableness  whether  question  of  fact  or  law,  158. 
custody  of  baggage,  162. 

power  of  employee  to  alter  or  waive,  157,  163. 
when  should  be  explained,  174. 
resisting  unreasonable  exactions,  iG^jet  seq. 
printed  on  ticket  sufficient,  179. 
notice  of  posted  in  carrier's  office,  179. 
when  passenger  bound  to  enquire,  178. 
notice  of  time  limit  to  ticket  must  be  given,  178. 
passenger  bound  to  obtain  baggage  check  if  possible,  16 1  n.  3, 

220. 
effect  of  neglect  to  enforce,  164,  247. 


INDEX.  385 

RULES  AND  REGULATlONS-c^////////^^. 
how  affected  by  usage,  239. 
eifect^of  when  adopted  under  Legislative  authority,  345. 

See  Cars  Classified  ;  Ejection    of    Passenger  ; 
Engine  ;    Noi ice  ;     Platform  ;      Stations  ; 
TicKEi  ;     Time     for      Presenting     Claims; 
Waiver. 
RUST. 
'  loss  from,  330  n.  2. 

SeeX^OMMON  Exceptions. 


SALVAGE  EXPENSES,  65. 
SEATS. 

passenger's  remedy  if  not  furnished,  151, 
SEAWORTHINESS  of  ship,  32,  et  secj. 
SHIP. 

when  treated  as  wrong-doer,  46,  320  n.  3. 
SHIPPING  AGENT. 

See  Authority  of  Shipping  Agent. 
SHIPPING  RECEIPTS,  temporary. 

See  Limitation  by  Contract;   Time  of  Making 
Contract. 
SHRINKAGE. 

See  Common  Exceptions. 
SIGNATURE  OF  SHIPPER. 

not  necessary  to  contract,  229. 
SINKING. 

loss  from,  330  n.  2. 
SKILL  AND  FORESIGHT. 

See  Diligence. 
SLAVES. 

carrier's  liability  for  injury  to,  98. 
SLEEPING-CAR. 

ticket  for,  230. 
SPECIAL  CARRIER,  248. 
STATES  OF  THE  AMERICAN   UNION. 

effect  given  to  statute  law,  199. 

unwritten  commercial  law  of,  200,  et  seq. 
STATIONS. 

carrier  may  make  rules  as  to  stopping  at  particular  stations, 

159- 
25 


586  INDEX. 

STATION  S — continued. 

carrier  not  bound  to  stop,  excepting  according  to  rules,  159. 
passenger  must  enquire  when  train  stops,  159. 
train  not  stopping  at,  passenger  may  change  train,  160. 
train  must  stop  at  station  if  required  by  statute,  161. 
usage  as  to  stopping,  244. 

See  Rules  and  Regulations. 
STATUTES. 

affecting  right  to  contract  against  negligence,  90. 
giving  right  of  action  for  negligence,  113. 
l)rohit)iting  limitation  of  tickets  as  to  time.  143. 
as  to  breaking  journey,  149. 
State  statutes  in  Federal  courts,  199,  348. 
Utah,  as  to  burden  of  proof,  255  n.  2,  256. 
construction  of  statutes  prohibiting  limitation  of  liability,  339. 
See    LiMii  ATioN    by    Statute  ;     Limitation    by 
Statute  of  Ship-owner's  Liability. 
STIPULATION  FOR  VALUE. 

See  Procedure  under  U.  S.  Statute. 
STOP-OVER  TICKET. 

See  Ticket. 
STORAGE  OF  CARGO 

during  obstruction  to  navigation;  309  n.  4. 
STORMS. 

when  not  termed  acts  of  God,  296,  306. 
STOWAGE. 

usage  as  to,  245,  329,  et  seq. 
duty  as  to,  328. 
loss  from,  329. 
by  owner  of  goods,  112. 
STRANDING. 

when  it  is  peril  of  the  s^a,  306. 
STRIKES,  as  a  defense. 

See  Vis  Major. 
SUBROGATION 

of  insurer  to  rights  of  shipper,  338,  et  seq. 
when  and  how  this  right  may  be  taken  away,  339.  et  seq. 
SUNDAY. 

passenger  riding  on,  219. 

See  Illec;al  Voyage. 
SURRENDER  of  ship  and  freight. - 

See    Abandonment    of    Interest    in    Ship    and 
Freichi  ;  Procedure  under  U.  S.  Statute, 


INDEX.  387 

SWEATING. 

See  Common  Exceptions. 


TEMPORARY  OBSTRUCTION.      . 

no  ground  for  abandoning  voyagf,  309. 
THIEVES. 

what  words  will  include,  318,  322  n.  5. 
*  loss  by,  when  held  to  include  loss  by  violence,  318,  322  n.  5. 

definition  in  policies  of  insurance,  318. 
insurance  against,  not  implied,  341. 
TICKET  AGENT. 

authority  of,  166. 
TICKET  OFFICE. 

duty  to  keep  open,  134,  et  seq. 
TICKETS. 

free  drover's  pass,  107,  108. 

must  be  shown,  139. 

lost,  139. 

must  be  shown,  even  if  conductor  knows  of  them,  140. 

rule  to  show  need  not  be  on,  141. 

when  may  be  taken  up,  141. 

exchanged  for  checks,  141. 

in  coupons,  141,  147,  180. 

limit  as  to  time,  right  to  limit,  142. 

commutation  tickets,  142,  150,  173,  174,  177. 

limit  as  to  time,  notice  of  limitation,  143. 

limited  as  to  time,  reduced  fare,  142. 

statutes  prohibiting,  143. 

verbal  waiver  of,  144. 

beginning  trip  on  last  day,  144. 

expiring  Sunday,  144. 
stop-over,  145,  148. 

right  to  break  journey,  146,  148.  , 

when  passenger  must  pay  a  second  time,  146.  * 

if  not  valid,  conductor  may  not  retain,  147. 
right  to  ride  part  way,  148. 
non-transferable  used  by  passenger  for  part  of  journey  cannot 

be  transferred  for  remainder,  149. 
right  to  take  from  vendee,  150. 
stranger  traveling  under  such  a  pass  cannot  recover  for  injuries, 

X50. 
forfeiture  for  breach  of  contract  not  to  assign,  150. 


388  INDEX. 

T I C  K  E  r  S — continued. 

loaned  to  a  stranger,  150. 

may  be  assigned,  if  no  nil':  to  contrary,  151. 

special  for  freight  train,  153. 

when  carrier  has  sold  wrong,  165,  166  n.  i. 

drawing-room  car,  where  company  not  liable  to  person  riding 
under,  164. 

refusal  to  sell  commutation,  177. 

what  language  necessary  to  make  contract.  230. 

a  voucher,  not  contract.  230. 

admissible  as  evidence,  231. 

not  conclusive  evidence,  265,  272. 

construction  of,  238. 

printed  matter  on,  when  part  of  contract,  264.  265,  272. 

over  connecting  lines,  286. 

authority  line  selling  ticket,  286. 

See  Continuous  Trip  ;    Ejection  of  Passenger  ; 
Free  Pass;  Free  Passenger. 
TIME. 

for  fixing  valuation  to  limit  liability,  7,  62. 

occupied  in  transit,  must  be  reasonable,  215. 
See  Time  of  Presenting  Claim. 
TIME  FOR  BRINGING  ACTION. 

limitation  not  extended  by  negotiation,  128. 

waiver  of  limitation,  128. 
TIME  OF  MAKING  CONTRACT. 

stipulation  inserted  after  shipment  a  fraud  on  shipper,  271. 

receipt  sent  to  consignee,  271  «. 

receipt  sent  to  shipper  after  shipment.  271. 

passenger  ticket  not  read,  272. 

after  delivery  of  bill  of  lading,  272. 

change  in  contract  a  consideration,  272. 

receipt  referring  to  future  contracts,  274. 

shipping  receipt  before  bill  of  lading,  274. 

receipt  delivered  to  shipper's  agent  after  shipment,  274  n. 

acceptance  of  bill  of  lading  after  loss  of  goods,  274. 

when  objections  to  shipping  agent's  contract  are  to  be  made 
within  a  limited  time,  275. 
TIME  OF  PRESENTING  CLAIM. 

may  be  limited,  123. 

limitation  must  be  reasonable,  123. 
and  definite,  129. 

at  delivery  of  goods,  123,  134. 


INDEX.  389 

TIME  OF  PRESENTING  CI. AIM— continued. 

where  limitation  does  not  include  claim  for  latent  injuries,  126. 

not  limited  by  notice,  127. 

limitation  does  not  cover  negligence  unless  expressed,  127. 

limitation  does  not  include  claim  for  collection  to  be  made  by 
carrier  for  shipper,  127. 

whether  extended  by  negotiation,  128. 

when  it  begins  to  run,  128,  129. 
/  See  Rules  and  Regulations. 

TORTS. 

liability  of  master  for  wilful  torts  of  servant,  320,  et  seq. 
See  Conflict  of  Laws. 
TRANSPORTATION. 

does  not  include  time  while  waiting,  238. 

mode  of  contracted  for,  must  be  followed,  92,  et  seq.,  236. 

time  occupied  in,  must  be  reasonable,  215. 
TRESPASSER. 

ejection  of,  173. 
TRUSTEE. 

assignment  to,  of  interest  in  vessel,  &c.,  45,  64,  73. 

duty  of,  74. 


ULTRA   VIRES. 

railroad  belonging  to  foreign  corporation,  182. 
USAGE. 

as  to  baggage,  211. 

as  to  place  of  receiving  parcels,  211. 

must  be  legal,  246. 
USAGE  OF  CARRIER. 

binding  on  himself,  244,  245,  246  n.  3. 

as  evidence  of  shipper's  assent,  227,  239,  241. 

cannot  be  shown  to  contradict  contract,  239. 

not  to  be  responsible  for  certain  losses,  240. 

parol  evidence  as  to  usual  form  of  bill  of  lading,  239,  240. 

of  place  of  delivery  determines  manner,  244. 

as  to  manner  of  delivery,  241,  243,  244,  et  seq. 

what  will  constitute  proof  of  usage,  243. 

as  to  delivery,  binds  carrier  and  shipper,  244. 

as  to  stopping  train,  244. 

as  to  delivery  to  connecting  line,  245. 

as  to  delivery  in  forwarding,  245,  246. 

stowage,  246,  249,  329. 


390  INDfiX. 

USAGE  OF  CARRIER— con/inued. 

will  not  justify  dangerous  mode  of  stowage  when  better  mode 
known,  246,  329. 

as  to  mode  of  transportation  binding,  246,  247. 

evidence  of,  to  exception  bill  of  lading,  246,  247. 

evidence  of,  to  contradict  bill  of  lading,  239,  247. 

as  affecting  waiver,  247. 

necessity  of  notice  of,  115,  242. 

whether  knowledge  of,  by  shipper  or  consignee,  necessary  to 
make  usage  binding,  242,  <?/  se^. 

must  be  well  known  and  general,  243,  326. 

carrier  relying  upon  must  perform  his  part,  248. 

to  carry  only  certain  kinds  of  goods,  248. 

part  of  the  contract,  241  n.  2. 

to  give  shipping  receipts  before  bill  of  lading,  273,  274 

not  to  be  liable  for  fire,  240,  326. 

See  also  Rules  and   Regulations. 
USURY  LAWS,  187. 


VALIDITY  OF  CONTRACT. 

See  Conflict  of  Laws  ;  Limitation  bt  Contkact. 
VALUABLE    ARTICLES. 

statute  concerning,  48. 
VALUATION  in  bill  of  lading  when  binding,  116. 
VALUE. 

regulations  as  to,  119. 

limiting  liability  to  invoice  value,  118. 

invoice  value  construed,  122. 

fraud  as  to — by  shipper,  116. 

reason  for  carrier's  right  to  know,  212,  213. 

enlarging  limitation  as  to  value  stated  in  receipt,  267. 
See  Burden  of  Proof  ;  Evidence. 
"VALUE  AND  CONTENTS  UNKNOWN." 

interpretation  of,  291,  et  seq. 

qualify  received  in  good  order,  291. 

affecting  rights  of  assignee  of  bill  of  lading,  290,  291  n.  2. 

in  bill  of  lading  for  molasses,  293  n. 

available  to  shipper  as  well  as  carrier,  294. 

See  Burden  of  Proof  ;  and  Evidence. 
V.^LUE,  DISCLOSURE  OF. 

shipper  or  passenger  need  not  volunteer,  206. 


INDEX.  391 

VALUE,  DISCLOSURE  OY— continued. 

carrier  should  ask,  if  he  desires,  207. 

baggage,  206,  et  seq. 

Federal  Courts,  rule  in,  207. 

when  liability  limited  in  receipt,  208. 

appearance  of  package  misleading,  209. 
'    when  amount  of  liability  limited,  209,  210. 

when  carrier  asks  must  be  given,  210. 
VALUE,  FRAUDULENT  CONCEALMENT  OF,  210. 

gold  in  emigrant's  luggage,  211. 

what  amounts  to,  211,  212. 

delivery  at  wrong  counter  in  express  ofifice,  211. 

misstating  value  or  character,  212. 

to  secure  lower  rates,  212. 

motive  not  important,  212. 

reason  of  rule  as  to,  212,  213. 

remedy  of  carrier  for  deception,  213. 
VESSEL  ON   HIGH  SEAS. 

territorial  status  of,  190,  et  seq.,  204. 
VIS  MAJOR. 

government  intervention,  313. 

illegal  act  of  government  officer,  313. 

carrier  may  insure  against,  313. 

carrier  under  military  contract,  313  n.  4. 

strikes,  314. 

mobs,  riots  and  insurrections,  315,  316. 

delivery  to  lawful  authorities,  when  required,  312  n.  i,  316. 

pirates,  312  n.  i,  317. 


WAIVER. 

of  agreements  as  to  time  and  manner  of  presenting  claims,  128. 

carrier  may  waive  his  rules,  163,  247. 

when  checking  baggage  is,  163. 

what  ogents  may  waive  rules,  163,  164,  166,  167. 

partial  waiver  of  time  limit  to  ticket,  163. 

by  neglect  to  tnforce  rule,  164,  247. 

by  error  of  carrier's  agent,  164. 

parol  evidence  of,  268. 

See  Usage;   Rules  and  Hkgulations. 
iVAREHOUSEMAN. 

when  carrier  liable  as  such,  283,  284,  331,  333  n.  i,  335,  336, 


392  INDEX. 

WEATHER. 

See  Common  Exceptions. 
WEIGHT. 

effect  of  statement  as  to,  in  bill  of  lading,  293. 
WHARF  BOAT. 

loss  of,  not  a  peril  of  the  river,  304 


Whole  No.  I'aces,  442 


a 


jf^  y 


^tili)KAKr-6y 


vV  ->> 


^''lOMV-SOl^ 


.OFCALIFO%  ^\\^EUNIVER5'//, 


CD  R^ 


'omm 


?133NV-S01^ 


:^l:UNiVtKi/^- 


•ANGEi£| 


^        6: 


•^Ay3AINQ-3V\V 


.OFCAilFO% 


>r  v:. 


i:kJ//a 


%0-invi-^o- 


TA'VSOl^ 


fLZ^\ 


^    cxT 


UC  SOUTHERN 


REGIONAL  LIBRARY  FACILITY 


AA    000  884  548    9 


^^1^ 


1^ 


m 


^^m-MliEs^ 


i.Alli6^  ,^;x^till5KAli: 


\  ^  :>v 


.-.-^ 


I 


minilllllllliWlluilimil 


Ml 


i 

iiiii 


sii 


'\\\\[ 


mm 


illillP 
liliillii^ 


.liiiiii 


iiiiiii 


m 


mWMlM 


Hi: 


B 


wmw 


illiiii^ 


iiiiiiii 

lii 


:^iiil 


I'iiititH'frf'V'HHH 


11  !)l  UUr 


:- HI 


¥ 


■lii 


,"(^^!   rl'i) 


■; '  I 


'■''1 


